This morning, the scheduled sentencing of Charles Merritt on his convictions in June of killing all four of the members of the McStay family in 2010 was postponed until December 13.
After a five-month trial, the jury in the matter on June 11 convicted Merritt, 62, of the first-degree murders of his one-time business associate Joseph McStay, then 40, McStay’s then-43-year-old wife Summer, and the couple’s two children, 4-year-old Gianni and 3-year-old Joseph, Jr.
Phone records and computer activity placed the family at their Fallbrook home on the evening of February 4, 2010. A call placed from Joseph McStay, Sr.’s cell phone at 8:28 that evening to Merritt was the last indication that the family was alive. Thereafter, all phone activity from Joseph, Sr., who was a prolific user of his cell phone, and Summer ceased.
The family had inexplicably vanished, with the only trace seeming to be what many interpreted as the family’s departure to Mexico, as the family vehicle was found abandoned in a mall parking lot less than a half mile from the international border in San Ysidro on the night of February 8, 2010, and a grainy video taken by a camera trained southward from the American side of the pedestrian crossing into Mexico at San Ysidro that evening depicted a family of four – a man, woman and two small children – seen from behind as they headed across the border.
The family was never heard from again. In November 2013, the corpses of three of the family members – Joseph Sr., Summer and Gianni – were found in shallow graves in the desert between Victorville and Oro Grande. Joseph, Jr.’s body had been unearthed by animal predators, and only minute remnants of his bones were found scattered in the area.
The gravesite was some eight miles from where Merritt had spent much of his adolescence in the 1970s, when he attended Apple Valley High School for three years.
Investigators gathered evidence and arrested Merritt in November 2014, just shy of one year after the bodies were found. Prosecutors assembled an entirely circumstantial case against Merritt based upon oftentimes sketchy evidence, including a poor quality video from a neighbor’s security camera of a vehicle which sheriff’s department investigators and prosecutors maintained was Merritt’s work truck leaving the McStay residence in Fallbrook at 7:48 p.m. on the night of February 4, 2010. Defense attorneys Jim McGee, Raj Maline and Jacob Guerard, however, contested that suggestion. The photogrammetrist the district attorney’s office first hired to evaluate that evidence and present findings the prosecution believed would unequivocally demonstrate Merritt was present at the McStay home when the family was killed, the world’s leading expert on photographic and visual analysis, Dr. Leonid Rudin, came to the opposite conclusion, offering testimony to indicate the vehicle in question was not Merritt’s truck.
Despite that setback for the prosecution, it was able to present evidence demonstrating that Merritt had written himself checks on Joseph McStay’s business account in the days just before, the day of and the days after the family’s disappearance, the last two of which were backdated to February 4, 2010. Merritt was also demonstrated to have called the customer service desk for QuickBooks, an accounting software company, on February 9 and February 10, 2010, identifying himself as Joseph McStay and attempting to have data relating to Joseph McStay’s business account electronically purged. The prosecution further presented cell phone account data to show that Merritt was in the High Desert on February 6, 2010 using his cell phone late that morning and early afternoon while his phone was making contact with a cellular service tower high on a mountain overlooking the expanse of desert where the graves were located. Prosecutors maintained that Merritt was burying the family on February 6, 2010.
After finding Merritt guilty of the murders of the entire family, the jury delivered sentencing recommendations of life without the possibility of parole for the killing of Joseph McStay, Sr. and death for the murders of Summer, Gianni and Joseph, Jr.
It was widely anticipated that the defense team would file motions for a reduction of the penalties from death to life without the possibility of parole as well as motions for a new trial and an appeal of the verdicts.
Such motions did not materialize, however, and upon taking up the matter this morning, Judge Michael A. Smith heard that both McGee and Guerard wanted to be relieved as Merritt’s counsel. The rationale for Guerard’s request was not provided. McGee claimed some order of a conflict in representing Merritt going forward. Maline stated, “I don’t feel I have a conflict,” but asked for a postponement in the sentencing because, he said, the substance of the motions to be made on Merritt’s behalf “deals with a lot of the work that was done by Mr. McGee.”
At that point, McGee, Guerard and Maline accompanied Merritt into a private conference with Judge Smith in his judicial chambers.
They subsequently emerged, at which point Judge Smith said, “There is a conflict between Mr. Merritt and Mr. McGee that would keep Mr. McGee from representing Mr. Merritt.”
Accordingly, Judge Smith said, he was going to grant a continuance for the defense team, giving it “time to investigate where they need to go. None of the motions have been filed, so the defense does need additional time to file motions for a new trial and to reduce the sentence. We tentatively discussed going over to December 13 for a hearing on any post-conviction motions and sentencing.”
Judge Smith then said he would hold an in-camera “conference on whether or not Mr. McGee should be relieved on November 1 at 1:30.” Judge Smith said that exchange would deal with “any issues to be addressed and whether there is a conflict, and Mr. McGee should be relieved. Mr. Merritt is entitled to a conflict-free counsel.”
Judge Smith, without divulging what had been said during the in-camera exchange in his chambers, offered a tantalizing glimpse of what might have been at issue when he alluded to “pitting one counsel against another. That is a concern if we reach the point where Mr. McGee says, ‘Despite whatever the discussions are, I feel I have a conflict and cannot continue.’”
Judge Smith said, “I believe we need to at least examine or address that issue, whether Mr. McGee can continue.” He noted that McGee and Maline are no longer law partners and that since “they are different offices and practices, that might not be as much of a problem.” While the judge hinted that some differences may have arisen between McGee and Maline, he did not state so explicitly.
Supervising Deputy District Attorney Britt Imes, who headed the team prosecuting Merritt that also included Supervising Deputy District Attorney Sean Daugherty and Deputy District Attorney Melissa Rodriguez, objected to the delay, saying the verdict had been rendered this spring and the defense had “three months to sort out these issues. This delay is excessive and unnecessary.”
“I agree,” Judge Smith said. “I was surprised that at a minimum the motion to reduce the sentence had not been filed. Yet, for Mr. Merritt the issue is Mr. McGee’s ability to participate in those motions and that is one reason for the delay. There is not an indefinite period that they get to do that. While regrettable, I think it is necessary.”
Judge Smith ordered the defense to have its motions filed by November 22 and a response from the prosecution to be filed by December 9. A hearing on the post conviction motions is to be heard on December 13 at 8:30 a.m.
As he took leave of the courtroom, McGee declined to provide any statement to the Sentinel with regard to what constituted the conflict.
After the hearing, an individual close to the defense told the Sentinel that McGee believed “heart and soul with no wavering” that the alternative suspect in the killings the defense had presented at trial, “Dan Kavanaugh, was involved directly or orchestrated the murders and that Chase had no involvement whatsoever.”
McGee had dedicated more than a year of his life to preparing for the trial and in representing Merritt during the trial, the individual said. “He was staggering under the workload and lack of pay. He has better things to do, now that the trial is over and it’s not his bailiwick anymore.” It was suggested to the Sentinel that McGee, who was a prosecutor for most of his career before becoming a defense attorney, may be contemplating a run for judge, and that is what the conflict stems from, as the 2020 election year is approaching.
-Mark Gutglueck

On the day that Brezhnev died

I dug and furrowed in my garden

A windswept but warm fall day

Planting radishes for a winter harvest

On my hands and knees I toiled

The blue cloud swirled sky above me

Cast shadows I barely noticed

As I plied the fertile California soil

The birds heading south seemed

Perhaps to me to be Arctic gulls and

Cars traversed the streets of Moscow as usual

On the day that Brezhnev died

                                 November 10, 1982

I WAS HITCHHIKING OUT THE RAMONA EXPRESSWAY, standing to the side of some eucalyptus trees. The sun was slight summer south, so I was full under it. I stood there near an hour after I was left off by this guy pulling a set of hay barges. Alfalfa he was carrying, the sweet-smelling kind they grow in those drained marshes out near the lake.

It was past noon and pushing one o’clock, with the sun getting hotter and hotter, beating down on my head. I told myself, if none of the coming line of cars stopped, I was going over to the shade on the other side of those trees to lie down and take a nap until it got cooler. The first one of the bunch pulled right over when he saw me though, off onto the shoulder, blowing dust and all, a blond guy in a pickup truck. I climbed in. He looked to be about my age, with the sun glaring in his face through the windshield. He wore glasses. He waited for the last of the cars that had been behind him to pass, and he pulled out onto the roadway. “I’m Larry,” he said.

He continued out Ramona west, the wind tearing in through the side windows, wrapping my hair all around my head, slapping my ears and eyes and neck. Larry passed all the cars that had gotten ahead of him when he stopped for me. When we passed the first one in line he gave it a long lookover in his rearview mirror. We traveled on another eight or nine miles, the dairies and pastures streaming by with the mountains and the lake in the distance. In all that time we didn’t talk. He had given me his name and that was it. At first I tried to think of something to say, something that would sound natural. I couldn’t, so I just watched the scenery. I’ve been out the Ramona Expressway a hundred times, more than that probably, but I never paid attention to everything out that way like I did then. I noticed lots of things I had never seen before, like moss backing on old fence posts and water flowers in the watering holes and troughs near the mangers. I felt that comfortable in that truck.

We’d gone through Seedwood, and just past the hills where the Indians had their watering holes long before white men were sinking wells in California. Larry broke our silence to ask me where I was headed. I came away from trying the quickness of my vision on the gold and blue butterflies the truck missed to tell him the other side of Dry Dollar Lake. He said he had to stop and pick something up about a mile ahead, but that he was continuing out to Watershed Falls. I said sure, anything that would get me that close.

A ways further he slowed down and turned off into a dirt road. It was fairly smooth as dirt roads go, and the few bottom-threatening dips there were Larry handled with a familiar ease. When I looked behind I could see his wheels churned up only a little dust. The dirt road continued for a parched distance, inclining to pass over a low bluff with green but still sparse chaparral along the ridge. Then we were heading down into a narrow arroyo, and the truck bounced and swayed side to side. At the bottom a slight streambed began alongside the road and continued beside for the length we went. There was only the hint of a stream in it though, nothing more than a trickle.

Visible in the distance was a wooden house, a cabin, around which were set other slight structures, shadow grey against the bright gold scape. In closer I could see they were wooden shacks higher or near as high as they were long, a few smaller sheds, and chicken coops. A station wagon was parked in front of the cabin. There were trees further off, healthy ones, close together, but not quite a grove.  The few treas near the house were stark, mostly leafless. The cages close enough for me to see were empty, though here and there a hen scurried, scratched and pecked at the dry earth.

Larry pulled in close to the house, to the side of the station wagon. He said he just had to pick something up, but I could come in for a drink of water. As we were stepping up onto the wood porch side by side with a few of the hens clucking behind us a young woman with a baby in her arms opened the cabin door. She was half turned, saying goodbye to someone inside. We waited for her to come out, and she stepped straightaway for the station wagon, sending Larry a nod. We went into the cabin.

Across the room was a woman in a wheelchair. My being there didn’t take her aback any. She addressed herself straight off to Larry. “I told her to go and get that money out of the bank right now,” she said. Larry offered no reply.  Outside the engine started and then I could hear the tires turning out on the earthen driveway. “I told her to go and get that money out of the bank afore he dies.”

Larry seemed to be not listening to her, and he pointed across the room to the faucet. “Over there. There’s some glasses in the cupboard,” he said.

“It’s not his money,” the woman continued. “She should get it before the State does.”

“I know all that, Mother,” Larry said. There was a tinge of anger in his voice. He started into the adjoining room.

“She should get that money out of the bank right now,” the woman repeated.

I went to where Larry had directed me, at the far side of the room. The faucet was built over a wooden sink. I had to pump a side crank to prime up the pressure in the line. The woman rewheeled and was regarding me in shifty looks up and down. I didn’t look her way back, just got a tall glass and filled it. I came away a few feet from the sink and still didn’t look right at her, but out the window beside the door we had come in. The station wagon climbed the last of the slope to the narrow gorge at the crest and then disappeared over the other side. The water, so deep cold it like froze my throat, tasted clean as from a mountain spring in June.

Larry came out from the other room with a tool box. He set it down heavily onto the counter and went straight to looking in one of the drawers beneath the counter for something more. He popped up the tool box lid and set something in it, a screwdriver or something, and shuffled some more in the drawer and then in another. “Where’s that flashlight?” he asked.

The old woman wheeled herself back and then around the table, then reached behind the sofa. I had a real clear look at her then, when she was looking to the side and when she was handing the flashlight to Larry. You could see she was his mother alright. Their hair was the same flaxen, except hers had grey in it, and their eyes were keen blue, like Texas Germans. She told him not to lose it, the electricity was always going out.

He set the flashlight under the top tray and closed the toolbox  back up. I set the empty glass on the wooden drainboard and followed him out. We got in the truck and drove back out to the expressway with the  tool box rattling and sliding on the seat between us at the sharper bends in the road.. We never passed the station wagon in all the six or seven miles he took me out further west like I thought we might. We didn’t say anything either, just drove. He let me off just above the flood control dam at the turnoff to the hatchery. A little more than an hour later I got another ride to where I only needed to walk about a mile to the trailhead for the cabins. I was back before four.

The exuberance of the new season is coming together.  Everywhere I can see people wearing autumn colors. It’s a reflection of  grapes,  and pumpkins of the farmers’ markets. Autumn in California sparks many ideas specially when it comes to clothes. In California we love comfort and autumn is all about cozy. This week’s piece is the Utility Pants. What’s great about it? Much! They’re comfortable and just like jeans they are easy to style. Another great thing is you can start off casual and work them up. You can pair them with a blazer and pumps, or sneakers, and cardigan. The topper is if you’re bored with jeans leave it to the cargo to liven up your wardrobe.

“Style is the only thing you can’t buy. It’s not in a shopping bag, a label, or a price tag. It’s something reflected from our soul to the outside world—an emotion.”  – Alber Elbaz

By clicking on the blue portal below, you can download a PDF of the September 20 edition of the San Bernardino County Sentinel.

Sentinel 9-20-19

Reaching a conclusion that the four-fifths strength San Bernardino County Board of Supervisors late last year violated California’s open public meeting law, the Brown Act, Superior Court Judge Janet M. Frangie this week voided the now nine month-old appointment of Dawn Rowe as Third District county supervisor.
Judge Frangie’s ruling, which included an order that Rowe forthwith be removed as supervisor and that responsibility for the appointment be taken up at once by the governor, threw San Bernardino County’s governmental and political establishment into a temporary tizzy. The following day, Thursday, September 19, the county appealed Frangie’s ruling to the Fourth District Court of Appeal in Riverside, buying what most top county officials hope will be a six month-or-more-long delay during which Rowe will remain in office, at which point the 2020 California Primary in which she is vying for election will take place, allowing her to run as an incumbent rather than a candidate who has been bounced from office as the result of a legal challenge.
San Bernardino County remains as one of the last bastions of the Republican Party in California, where elected officeholders aligned with the GOP yet outnumber Democrats in office, a function of significantly higher Republican voter turnout despite increasingly lopsided voter registration numbers favoring the Democrats countywide. Rowe, a Republican, was selected to replace James Ramos, a Democrat and the elected incumbent Third District supervisor, after Ramos resigned from the position to accede to the California Assembly after he successfully vied for that position in the 40th Assembly District in the November 2018 election. Supervisors Robert Lovingood and Janice Rutherford, both of whom are Republicans, advocated heavily for Rowe’s appointment.
The the board on December 10 winnowed the field of 48 qualified applicants to 13, consisting of former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Yucca Valley Councilwoman Dawn Rowe, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby. Twelve of those 13 were Republicans, with Dailey being the only Democrat.
At a specially-called meeting on December 11, all of them were interviewed publicly.  During the public comment portion of the  meeting which preceded the interviews, Ruth Musser-Lopez protested the secret polling among the supervisors that had taken place the previous day and had reduced the 48 applicants to the 13 candidates being considered. She characterized that as a violation of the Brown Act. After the interviews that ensued, the board reduced the field to five Republicans: Emmerson, Flynn, Jahn, Rigsby and Rowe. Those five were invited back for second interviews on December 13.
Musser-Lopez on the evening of December 11, fired off a letter to the board and County Counsel Michelle Blakemore through the clerk of the board, reiterating her objections in writing, and labeling it a “complaint.” In the letter, she asserted, “On December 10-11, 2018, you the members of the county board of supervisors in concert and individually violated the Ralph M. Brown Act specifically CA Gov. Code, § 54953.5 when you did cast preliminary votes secretly, without a process agreed upon by the public and without publicly disclosing the votes of the individual supervisors to the public.” She said that “the public was left out of the selection process, some applicants were not invited to address the board and were not allowed equal time, and due to the illegal polling, board members knew which applicants were ‘winning’ prior to their vote.” Musser-Lopez said this led to the board members “knowing in advance which applicants were preferred by the other members” and “wrongfully influencing their vote without public knowledge or intervention,” such that “a majority of the board” had been able to illegally “develop a collective concurrence as to action to be taken” and had furthermore engaged in private communications with one another through the use of secret ballots that were tantamount to a “serial meeting,” which is also outlawed by the Brown Act.
Musser-Lopez demanded that the board of supervisors cure the violation by voiding the December 11 vote and voiding “any other serial votes by members of the board of supervisors on December 10 and 11, 2018 and that to be voted on December 13, 2018 pertaining to the selection of a replacement supervisor for the 3rd District.”
When the board convened the morning of December 13, the proceedings lasted a mere 58 seconds and were gaveled to a close by Board Chairman Lovingood, after County Counsel Michelle Blakemore, the county’s top in-house attorney, referenced the Brown Act violation accusations and said, “Our recommendation is that the board take absolutely no action today and that the meeting be adjourned and we will bring an item back on Tuesday for consideration.”
On December 18, the board reconvened to take up the appointment of Ramos’s replacement, picking up where it had previously left off, and conducted second interviews with Emmerson, Flynn, Jahn, Rigsby and Rowe. At the prompting of the only Democrat on the board, Josie Gonzales, the board also consented to hearing from Chris Carrillo, a Democrat, a lawyer and Ramos’s assistant chief of staff in District 3 who had been overlooked previously by the board and had not been among the 13 originally interviewed. The process, which was heavily stacked in favor of Rowe from the outset, concluded after the interviews with the six were completed. Lovingood immediately nominated Rowe. With Curt Hagman, the other Republican on the board, now openly leaning in favor of Rowe as well, an axis in Rowe’s favor that was unbreakable had was apparent. Reading the writing on the wall, and realizing that Rowe’s selection was unstoppable and that she would need to work with her future colleague going forward, Gonzales joined with the remainder of the panel to make Rowe’s appointment unanimous.
Two individuals, both Democrats, objected to the fashion in which the appointment had been made. Ruth Musser Lopez on her own sent the county a letter of protest on December 10 taking issue with the secretive nature of the process and the bypassing of 35 of the candidates. Michael Gomez Daly, acting as the executive director of the Democratic Party affiliated political advocacy group I.E. United, likewise registered an objection to the process. After Rowe’s selection, Musser-Lopez, representing herself, and Daly in concert with I.E. United, filed separate lawsuits, claiming the board had not corrected the violations of the Brown Act, before proceeding with its selection of Rowe.
The suits alleged that supervisors through a series of actions including serial meetings and a secret tallying of the votes they made with regard to reducing the field from 48 to 13, conducted what was supposed to be an inherently public process behind closed doors. Early in the process, the board had agreed among themselves to designate the five candidates they each thought would best fill the Third District vacancy. Any candidate who received two endorsements or more was chosen to be interviewed. That was how the 13 candidates who were interviewed – Rowe, former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby – were selected. In December, when the board was asked who had voted for the 13 candidates, county officials responded to say that then-Clerk of the Board Laura Welch, armed with a list of all of the appointment candidates, simply made a mark beside the name of a candidate when one of the supervisors cast his or her vote in favor of him or her, and that she did so without recording which supervisor was casting each vote.
On December 18 Daly sent the board of supervisors a letter requesting that the board rescind its previous action and reinitiate the process by interviewing all of the candidates. The board, though it voted to withdraw the two lists it had created, the list of 13 candidates arrived at on December 10 and the list of five candidates it had reduced the field to following the December 11 interviews, the board members voted for three candidates each, which resulted in the same list of five candidates. After those interviews, the board acceded to Lovingood’s motion to choose Rowe, resulting in the unanimous vote to appoint her.
One of the issues driving the board was that the county charter and state law involve requirements that the board to fill a vacancy within 30 days based upon whatever selection process it deems fit or otherwise surrender to the California governor the power to make the appointment.
James Ramos had resigned as supervisor on December 3 upon being sworn into his position in the Assembly. In December, Jerry Brown, a Democrat, was governor. Gavin Newsome, a Democrat as well, was sworn in to succeed Brown on January 7. The concern of the Republican-dominated board was that if a decision was not made by it prior to January 2, the decision would fall to either Brown or Newsome, who would most likely appoint a Democrat.
Musser-Lopez’s suit named Lovingood, Rutherford and Hagman as respondents and Rowe as a real party-in-interest. Daly’s lawsuit named Lovingood, Rutherford, Hagman and Gonzales as respondents, with Rowe as a real party-in-interest. Initially, the lawsuits were dealt with separately, with Musser-Lopez’s sent for hearing by Judge David Cohn and Daly’s routed to the courtroom of Judge Frangie. Both were eventually set for trial before Frangie, who subsequently ruled in favor of the county to dismiss Musser-Lopez’s suit for not being timely filed.
After multiple briefings and arguments, Judge Frangie delivered her findings and opinion. She noted that not all violations of the Brown Act render action taken by a governmental panel as null and void, and that for action taken by a public governing board to be rescinded, the violation of the open public meeting law must be egregious, relate to actions violating the six specific sections of the Brown Act which enumerate serious matters and that the plaintiffs can clearly demonstrate that the public suffered actual harm or prejudice as a result of the Brown Act violation. Judge Frangie noted that the arguments the county made against declaring the appointment of Rowe to be null in void were based on case law which predated the California Legislature’s passage of a law in 1986 that enacted Government Code § 54960.1, which reinforced the Brown Act to allow for declaring an action taken in violation of the Brown Act to be null and void if the body that engaged in the Brown Act violation does not avail itself of the opportunity to “cure and correct” the violation.
Specifically, according to Judge Frangie, the board’s action was hidden from public view and deprived the public from participating in what should have inherently been a public selection process.  “These lists were submitted by the board members through a series of individual emails, which were then collected and tallied by the clerk for the purpose of obtaining a collective agreement by the board members to interview only a limited number of the 48-person applicant pool,” Judge Frangie wrote.
In her decision, Judge Frangie noted that both Musser-Lopez and Daly invited the board of supervisors to cure and correct its violation by voiding its previous action and reinitiating the selection process in compliance with the Brown Act but had failed to do so.
“[T]he court finds there is prejudice to the extent that the actions of the board deprived petitioners and the members of the community their right to monitor and provide input on the board’s collective acquisition and exchange of facts,” according to Judge Frangie. “The policy underlying the Brown Act is that public boards and agencies exist to aid in the conduct of the people’s business [and] the law is intended to mandate open and public actions and deliberations. The public trust is undermined by private deliberations and meetings not accessible to the public.  As the Supreme Court stated in Roberts v City of Palmdale, the intent of the Brown Act cannot be avoided by subterfuge – a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls     passing from one member of the governing body to the next would violate the open meeting     requirement. In this age of technology texts, messages and emails are easily substituted for letters and telephone calls. The public was further deprived of the information shared behind closed doors by the [board]members and of the content of their communications about the candidates as well as how they each voted. The public was further deprived of the opportunity to hear from all eligible candidates and to lobby for their preferred candidate before the board. These are the very things that the Brown Act was meant to address. Sections of the Brown Act were violated.”
In her conclusion, Judge Frangie wrote, “The court rules as follows:
1) The process by which Dawn Rowe was selected to the San Bernardino County Board of Supervisors violated the Ralph M Brown Act.
2) Respondents failed to cure and correct their violations of the Brown Act.
3) The appointment of Dawn Rowe as Third District Supervisor is null and void. Respondents and each of them shall rescind the appointment of Dawn Rowe as Third District supervisor. Pursuant to [the] board’s charter, the appointment of the Third District supervisor shall be made by the governor.”
Reflexively, the county the following day lodged an appeal of the ruling.
What was originally described as a “mad panic” on the part of several top county officials abated shortly thereafter, when it was realized that the appeal would stay  Frangie’s ruling, allowing Rowe to remain in office at least until the appellate court declines to take the matter up or until the appeal is heard.
One well placed source, who formerly held multiple positions in county government, including ones in the treasurer’s and assessor’s offices, told the Sentinel, “Everyone was traumatized by it when it first happened but when you analyze it, it doesn’t mean much, and everyone has calmed down. This was a ruling by a liberal Democratic judge, which is very likely to be overturned. Even if it is upheld, that won’t be for another six months or longer. The election is in March, by which point Dawn will have been reelected.”
The county’s official spokesman, David Wert said the board complied with the Brown Act in an appointment process that was, he insisted, “legal, proper and fully transparent,” during which any of those who applied for the position were given the opportunity to do so.
Today, the Board of Supervisors held a specially called closed session meeting, held at 1 p.m. in the Magda Lawson Conference Room on the fifth floor of the county administration building to discuss the matter. There was no indication of what the substance of the discussion was, as the appeal of the Judge Frangie’s ruling had already been filed the previous day.
Despite the board conducting its discussion out of the earshot of the public, it did break in the midst of the hearing to take public comment. Among those present was Musser-Lopez, who used the three minutes allotted her to chastise the board for its violation of the Brown Act in December and its legal effort now to overturn Frangie’s findings and rulings after it lost in court. She told the board that after violating the Brown Act and being caught, it should accept the defeat it suffered in Judge Frangie’s courtroom and simply accept the appointment Governor Gavin Newsome will make of someone to serve out the remainder of Supervisor Ramos’s term. She said the board was being profligate with taxpayer money in making the appeal.
“Look at the money you spent,” she said. “Now you are going to spend more on this appeal. You are going to get a good supervisor when Governor Newsome makes the appointment. You don’t care about anybody but yourselves and keeping your own reputations clear at our expense.”
-Mark Gutglueck

By Mark Gutglueck
In a series of coordinated actions, the political team which has coalesced around Congressman Paul Cook this week has moved to sew up three of the most powerful political offices in San Bernardino County’s desert area, with rumored reports that another member of Cook’s Republican machine will soon move to stake a claim on a fourth elected office.
While the timing of the moves was clearly intended to present a powerful and overwhelming front and thereby ward off potential rivals for the positions, an unforeseen ruling handed down by a Superior Court judge on Wednesday which essentially bounced one of the clique’s members from office held the potential for complicating the political plan of attack that all of the parties were hoping might be carried off seamlessly and with aplomb. Most significantly, the court ruling might wrest from at least two of the bloc’s electioneering operatives their comfortable governmental sinecures, such that they will no longer be able to carry out their electioneering function under the cover of being employed by the county.
This week, it appeared that Congressman Cook, Assemblyman Jay Obernolte, County Supervisor Dawn Rowe and Supervisor Robert Lovingood had orchestrated a game of political musical chairs in which all four had pretty solid assurance they would be able to hog all of the seating arrangements. Four weeks ago, Supervisor Robert Lovingood, who has been First District supervisor since 2012, set the table for the makeover of the Cook Political Machine when he announced that he will not seek reelection as supervisor in 2020. Shortly thereafter, without making a hard commitment, Cook said that he was mulling leaving Congress and instead seeking to replace Lovingood as First District supervisor.
Cook, a career Marine officer who served for 26 years before retiring as a colonel in 1992, had settled in Yucca Valley while he was assigned to the Twentynine Palms Marine Corps Base. In the immediate aftermath of his retirement he found employment as the director of the Yucca Valley Chamber of Commerce, then ran for the Yucca Valley Town Council, was elected and acceded to the position of mayor. In the meantime, he earned a master’s degree in political science at the University of California at Riverside. In 2006, he successfully vied for the California Assembly representing the 65th District, was reelected twice and served in that capacity for six years. In 2012, he stood for election to the U.S. Congress representing the newly drawn 8th Congressional District, which encompasses more than half of the eastern desert regions of California, including all of Inyo and Mono counties and more than 90 percent of the land mass of San Bernardino County, extending to all of its desert region and the cities of Yucaipa, Big Bear, Yucca Valley, Twentynine Palms, Needles, Barstow, Adelanto, Apple Valley, Hesperia and Victorville. As the 8th is a Republican-leaning district, by his incumbency Cook’s hold on the position at least until the redrawing of Congressional districts in 2022 following the 2020 Census was virtually assured for as long as he was willing to remain in office. At the age of 76, however, and with lingering health challenges, Cook has become less patient with the constant travel between California and Washington, D.C. that being a member of the House of Representatives requires, and for that reason, for him it was not unthinkable that he could just depart as a member of Congress, with its $174,000 per year salary and health, travel, tax deduction and retirement benefits valued at more than $100,000 per year, trading that lifestyle in on being a member of the board of supervisors, which provides $151,193.17 in salary, another $25,000 in other forms of pay, and $95,000 in benefits for a total annual compensation of $271,193.17. This week, on Tuesday September 17, Cook made it official, announcing he would not seek reelection next year and would rather vie to replace Lovingood. That would require that by next year he move from his official residence in Yucca Valley, which is in San Bernardino County’s Third Supervisorial District, to the First District, which includes Needles, Apple Valley, Victorville, Hesperia, and Adelanto, all of which are places he now represents as a Congressman, so that he will be able to deflect any carpetbagging accusations a political foe might throw his way.
33rd District Assemblyman Jay Obernolte, who had publicly stated when Lovingood made his announcement in August that he would respect whatever decision Cook made about his political future and that he would again support Cook if the former Marine colonel were to seek reelection to Congress but that he was also open to filling the void in the 8th Congressional District if Cook were to opt out of the House of Representatives, almost immediately announced he was a candidate for Congress in the 8th Congressional District after Cook declared his intentions on Tuesday. The same day, Dawn Rowe, who like Cook had once been a member of the Yucca Valley Town Council and later went to work for Cook as one of his congressional office staffers and who was appointed to fill the vacancy in the county’s Third Supervisorial District last December after former Supervisor James Ramos resigned that post to accede to the position of 40th District California assemblyman following his election last November, officially reaffirmed that she would run in 2020 to retain that office. It was widely anticipated that Lovingood would in short order announce that he was going to run in the 33rd Assembly District to replace Obernolte.
On the following day, Wednesday, September 18, however, San Bernardino County Superior Court Judge Janet Frangie entered her ruling in a lawsuit that had been filed on December 31, 2018 by Michael Daly and a Democratic Party activist group known as IE United against supervisors Robert Lovingood, Curt Hagman, Janice Rutherford and Josie Gonzales, challenging their appointment of Rowe to replace Ramos. In her statement of decision, Frangie sustained all of the elements of Daly’s petition for a writ of mandate which asserted the board had violated the Brown Act, California’s open public meeting law in accepting 48 applications for the Third District supervisorial position and then voting in secret on December 10, 2018 without interviewing any of the candidates to first reduce the appointment field to 13, then failing to cure and correct that violation and then appointing Rowe through a one-sided selection process which again violated the Brown Act on December 18. Judge Frangie ruled that the appointment of Rowe is thus null and void. She entered an order that the board of supervisors rescind Rowe’s appointment and that the selection of a replacement Third District county supervisor, in compliance with the county’s charter and state law now that more than 30 days following Ramos’ vacation of the office has taken place, be entrusted to the governor.
Judge Frangie’s ruling seriously untracked the strategy to send Obernolte to the nation’s capital, Lovingood to Sacramento, ensure that Cook is elected First District supervisor and keep Rowe in place in the Third District.
Before Rowe was designated as Ramos’s successor and while she was a member of Cook’s staff, she had been a colleague of Matt Knox and Dillon Lesovsky, both of whom also worked for Cook. In 2015,  while at a convention, Lesovsky was caught on video by the Project Veritas group acknowledging that campaign donations made to Cook could purchase influence, favorable votes and support from Cook on legislation impacting donors putting up the money. “Big campaign contributors of ours… you know, we’ll help them out,” Lesovsky can be heard saying on the video. To minimize the fallout, Lesovsky left Cook’s employ, Nevertheless, Cook prevailed upon Lovingood to hire Lesovsky as a member of his staff. In 2018, Lesovsky, in conjunction with Knox, generated what within the electioneering profession is referred to as “political attack” or “political hit” material relating to Congressman Paul Cook’s strongest opponent in his race for reelection that year, former California Assemblyman Tim Donnelly. Despite both Cook and Donnelly being Republicans, they faced off against each other in the November general election after having placed first and second, respectively, in California’s open primary voting in the June 2018 race in California’s 8th Congressional District, leaving the two Democratic candidates in the race to claim third and fourth place.
Traditionally, Republicans adhere to what is called “the 11th Commandment,” which admonishes members of the GOP, “Thou shalt not speak ill of a fellow Republican.” In 2018, however, the Cook Team was willing to dispense with that prohibition because Donnelly’s political persona, anchored to his identification as the most conservative politician in California and one who is unrelentingly faithful to bedrock ultra-right principles, matched perfectly with a solid plurality if not an outright majority of the voters in the overwhelmingly right wing 8th Congressional District.
Knox and Lesovsky devoted themselves to the “Dirty Donnelly.com” effort, which consisted of a website and signs directing the public to that website, which utilized doctored photos to paint Donnelly in the most negative of light, and dwelt at length on a number of derogatories relating to the former assemblyman, including that he had a criminal record, was scamming senior citizens, had deserted his family, had engaged in “political fraud,” stole from his own wife and was unemployed. In violation of state law, neither the website nor the signs directing voters’ attention to the website had any identifying California Fair Political Practices registration number nor the indicia required under California law for campaign signs and materials to show what entity, organization, committee or campaign paid for the materials. The campaign on behalf of Cook directed by Knox and the hit perpetrated by Knox and Lesovsky proved highly effective, as Cook trounced Donnelly in the November 6 election 108,414 votes or just under 61.33 percent to 68,370 votes or 38.67 percent.
While the identities of those behind Dirty Donnelly.com were unknown to the populace in general, those in Republican Party circles recognized the site as the handiwork of Lesovsky and Knox.
The prime mover in getting Rowe appointed Third District supervisor in December 2018 had been Lovingood, who was assisted in some measure by Phil Paule, who is Supervisor Rutherford’s chief of staff and who was formerly the district director for Darrell Issa when Issa was a Congressman. Lovingood put on a full court press to get his other Republican colleagues on the board to go along with getting Rowe in place on the supervisors’ dais with them. Paule had no difficulty at all convincing his boss, Rutherford, to support Rowe. Curt Hagman, the other Republican on the board, took only minimal convincing. Hagman is a bail bondsman, one-time Chino Hills councilman and later mayor and was subsequently a member of the California Assembly between 2008 and 2014, at which point he had to leave the state legislature because of term limits. In his last year-and-a-half in Sacramento, Hagman and his then chief of staff, the late Mike Spence, set their sights on his making a seamless transition from the California Assembly to another high paying and powerful political position, ultimately deciding on the position of Fourth District San Bernardino County supervisor, which oversees Chino Hills, Chino, Montclair, Ontario, Guasti and that portion of Upland below Foothill Boulevard.
To effectuate his election as Fourth District supervisor, Hagman had to bring about the removal of the incumbent, another Republican, Gary Ovitt. Ovitt had a firm grip on the post and was not obliged until 2018 to step down from the supervisor’s office because of the three-term limit that had first gone into effect with regard to the board of supervisors after 2006. Hagman strong-armed Ovitt out of the way by first deposing Robert Rego as the chairman of the San Bernardino County Republican Central Committee, which Hagman accomplished while he was yet in the Assembly in 2013. From that position of power, in which he had tremendous sway over how Republican Party dollars would be doled out, he intimated a battle royal would ensue with Ovitt in the 2014 election, one in which Hagman, working as San Bernardino County Republican Central Committee chairman, would cut off all party funding to Ovitt and instead divert it to himself. Simultaneously, while the Fourth District’s voter registration numbers had already shifted in favor of the Democrats, then-Congresswoman Gloria Negrete-McLeod, a Democrat, was opting out of running for reelection to Congress and was herself seeking the position of Fourth District supervisor. Faced with the prospect of having to head into a bruising battle with Hagman in that year’s primary election that would divide the Republican vote, favoring and strengthening the Democrat Negrete-Mcleod, Ovitt bowed out. Thus able to concentrate their firepower on Negrete-Mcleod, Hagman and his lead political operative, Mike Spence, who was also his chief of staff in his assemblyman’s office, was able to marshal enough force, fueled by the monetary backing of the San Bernardino County Republican Party, to defeat the retiring Democratic congresswoman in the race for supervisor, despite the district’s voter registration numbers tiding in favor of the Democrats in the Fourth District. Upon assuming office as supervisor, Hagman appointed Spence to serve as his chief of staff.
Hagman was able to engineer a similar victory for reelection as supervisor in 2018. Along the way, he has lost the services of Spence, who died earlier this year. Accustomed to operating ruthlessly wherever politics is concerned, and facing even tougher prospects for reelection in 2022 as the Fourth District is growing ever more Democratic, Hagman recognized the practicality of going along with the Cook/Lovingood/Rutherford game plan of establishing Rowe, who’s résumé included a stint on the post-Paul Cook Yucca Town Council, as the Third District county supervisor.
Rowe did not disappoint her sponsors. After her December 18 appointment, she moved to flesh out her district staff. She hired Knox as her chief of staff and Lesovsky as her policy advisor.
Rowe, a war widow whose Marine Corps captain husband was killed in Iraq during an operation in Anbar Province in 2004, is highly reluctant to demonstrate independence of thought, will and action, and has proven highly malleable to the direction of those with whom she has associated.  An illustration of this came during the selection process for Third District supervisor in December. Over the course of several days of hearings before the board, the degree to which Rowe was willing to alter her personal guideposts to match the expectations of those who are now her board colleagues was put in sharp relief.
At the December 11, 2018 board meeting, Lovingood asked her, “If you receive the appointment, would it be your intent to run again or is that something to be decided midstream? Where are you on that thought?”
Rowe responded, “So, when my husband died I stopped planning. I had a great plan that extended out into my retirement years and long term planning for me [now] is about six months. So, right or wrong, it is where God has taken me in my life, and I have no plans necessarily to seek election. Could it be possible if the citizens maybe advocate for that if I was doing an effective job as the appointed supervisor? Possibly, but it’s not necessarily a part of my plan.”
A week later, Tuesday December 18, Supervisor Gonzales said, “It came to my attention, whether it was gossip, or innuendo or scuttlebutt, that somehow you were being prompted or promoted to submit your application because it was Congressman Cook’s intent to run for Third District supervisor in 2020 and that you would be used as a placeholder. I called Congressman Cook and I spoke to him. I spoke to him very directly about my concern. He assured me that he did not have any intent to throw his hat in the ring for Third District supervisor in the year 2020.”
Rowe responded, “I was asked if I would run again outside this board. In going forward I was asked the same question here, ‘Would I seek election to this seat in 2020?’ My answer, truly from the heart is, ‘I really don’t like to plan long term because it is painful when it doesn’t happen. However, I said, in all candor, and I used [former Yucca Valley Mayor and current 42nd District Assemblyman] Chad Mayes and Paul Cook; I said I would like to run for the seat, but you never know what happens in politics. Who is to say that for example – and this was a private conversation that was apparently repeated or through gossip or however it came to your knowledge or was repeated differently – but what happens when someone like Congressman Cook or Assemblyman Mayes change course in their careers and they decide they should seek that seat, I would absolutely defer to their experience and what they would bring to the table and I would not run again, in that example. That was an answer I gave to a colleague of mine. I was being truthful at that time. I would not run against them for this position, when we were talking. I felt I was being deferential to their experience coming back to the county level.”
Gonzales pressed her, asking, “So, for the record, you are saying you would not run against Congressman Cook or Assembly Member Chad Mayes?”
Rowe sought to deflect the question, saying “Wouldn’t that be spicy? I’m not saying that for the record. I was asked that last week.”
Gonzales did not let up, saying, “I’m asking you that now.”
Rowe, who by that point had been fully brought up to speed on the importance of the Republican Party maintaining its edge against the Democrats in San Bernardino County and the advantage of working from a position of incumbency and the desirability of having governmental offices from which to work as a base during electioneering efforts, said, “I would certainly run against either of them.”
Shortly after Rowe made that statement, she was voted by the board into office.
Rowe is valued by Cook, Obernolte, Lovingood and Hagman in substantial measure because she has less regard, apparently, than do they for the potential legal consequences of running political operations out of her office. Her acceptance of Lesovsky and Knox, given their bona fides as political dirty tricksters, into key positions on her staff demonstrates her willingness to allow a political operation to nest down insider her office. In 2009, former San Bernardino County First District Supervisor Bill Postmus, who had risen to the positions of chairman of the board of supervisors and chairman of the San Bernardino County Republican Central Committee before he successfully ran for county assessor in 2006, imploded in scandal when it was revealed he was utilizing the assessor’s office and its premises, facilities and equipment to promote selected Republican Party candidates and measures. After it was demonstrated that 13 of the employees he had hired into the office had no experience,  expertise or training with regard to determining the value of property for the purposes of determining tax values and that they were instead either not showing up for work or were conducting partisan campaign activity at the office, he was charged with and subsequently pleaded guilty to six political corruption felonies relating to his misuse of his authority as assessor. If a law enforcement inquiry or action with regard to partisan political activity taking place in her office were to be undertaken, the buck would stop with the employees engaged in that activity and Rowe. Any criminal charges that might grow out of such an investigation would likely extend no further than Rowe and her office. In this way Rowe appears prepared to run whatever risk is needed to keep the Cook political machine in place and protect the other politicians involved, as it is unlikely that the other officeholders/candidates benefiting from such assistance would be held legally accountable. This week, when Rowe was directly asked by the Sentinel if she realized that her employment of Knox and Lesovsky as county workers while they were engaged in political activity was improper and unlawful, she did not respond to the question.
Paule, who is Rutherford’s chief of staff, has quite a history as a political operative himself and remains involved in electioneering efforts including those of his own and of other members of the Republican Party. He has an interest in being able to wield the services of Knox and Lesovsky on campaigns and on behalf of candidates of his choosing. In 2012, Paule unsuccessfully ran for election to the California State Assembly in District 67. His campaign was co-chaired by Congressman Issa and former State Senator and Assemblyman Ray Haynes. That same year, he left Issa’s office and went to work for the then-newly elected James Ramos, who, though he was a Democrat, had been elected with the backing of the wing of the San Bernardino County Republican Party based in Redlands. At one point, Republican Party strategists were holding out hope that Ramos, who can tap into a considerable wellspring of wealth that has been accumulated by the San Manuel Band of Mission Indians generated by its casino operation in Highland, would change his party affiliation to the GOP. That never materialized, and Ramos is now a Democratic member of the California Assembly. Paule remained with Ramos’s supervisorial office until July 2016, when he departed to serve as campaign manager for Issa in that year’s election. As the 2016 election season was drawing to a close, Paule was hired by Rutherford to serve as her chief of staff with the onset of 2017. Paule has also been associated with a number of Republican Party heavyweights throughout California, including Issa, Cook, and Haynes; Congressman Doug LaMalfa, former Congress members Jeff Denham, Gary Miller, Mary Bono Mack and Mimi Walters; former state senators Bill Leonard, Dick Mountjoy, Bob Huff, Bill Emmerson, Tony Strickland, and Mark Wyland, former California Assembly members Kevin Jeffries, Beth Gaines, Jim Silva, Cameron Smyth, Diane Harkey, Chris Norby, Brian Nestande and Jeff Miller. Paule has been a board member with the East Municipal Water District in Riverside County since January 2007, after he was elected to represent the district’s Division 1 in the November 2006 election. He has succeeded in warding off competition ever since and ran unopposed in 2010, 2014 and 2018.
What has been anticipated but which has yet, as of press time, to materialize is Lovingood’s declaration of candidacy in the 33rd Assembly District. His was the most passionate advocacy of Rowe’s appointment to the board of supervisors, and the use of Lesovsky, whom Lovingood formerly employed in his supervisor’s office, and Knox in his future political endeavors has been widely assumed.
In office, Rowe has shown caution in situating everyone so that electioneering in 2020 can take place. Significantly, Knox, who is provided with a total annual compensation package of $206,605 in his position as Rowe’s chief of staff, consisting of a $121,826 per year salary and benefits of $84,779, has assumed a very low profile in the office, with Rowe’s deputy chief of staff, M. Gayle Covey, taking on a much more public role in representing Rowe about the county and in the Third District. This is thought to be because Rowe wants to avoid having Knox visually and otherwise identified as associated with her, given the degree to which he will be intermingling with elements of the San Bernardino County community as a political operative, thus reducing the scrutiny Rowe will be subjected to for allowing her office to be used for partisan political purposes. Lesovsky’s role as a policy advisor calls for little interaction with the public. Rowe’s county website, unlike the websites for the other supervisors, does not feature profiles or photographs of her staff.
Rowe has absolutely refused to publicly address the issue of her efforts to assemble a political electioneering team on her staff. She possesses a bachelor’s degree in journalism from Drake University, but has assiduously avoided contact with news reporters since the initial public reports earlier this year of the hiring of Knox and Lesovsky and the intended employment of them as functionaries in any of several 2020 political campaigns. Rowe declined to speak with the Sentinel this week and did not return an email to her seeking answers to several pointed questions about the political shop being run out of her supervisorial office.
The appointment of Rowe as Third District supervisor was one of the last major undertakings of the board of supervisors while Lovingood was yet chairman of the board. Shortly thereafter, Hagman was chosen by his colleagues to serve as chairman. Undoubtedly, as the chairman of the board, he is in a position to know of what is going on throughout the entirety of the fifth floor of the county administration building, where the five supervisors and the county’s chief executive officer have their offices. Hagman has been identified, as well, as someone who would potentially benefit from the political activity undertaken from Rowe’s office. Hagman did not return phone calls placed to him this week which were intended to elicit from him his knowledge about Knox’s and Lesovsky’s activity so far, his understanding of Rowe’s acquiescence or direct participation in that activity, and his own attitude regarding it.
The Sentinel’s telephonic effort to reach Obernolte was fielded by Ross Sevy, an employee with Obernolte’s Assembly office who is also involved in his campaign effort.
Asked on Wednesday about a collective campaign effort promoting Obernolte, Cook, Lovingood and Rowe in their respective 2020 election campaigns involving the sharing of resources and the contributions of Knox and Lesovsky, Sevy said, “You would have to speak to the assemblyman. I’m not aware of any plans for that at the moment, but I cannot speak for the assemblyman. This happened fairly quickly. We were not aware Paul Cook would decide not to run for reelection to Congress and instead run for the supervisor’s seat. Paul made his announcement on Tuesday and we made an announcement today.”
With regards to reports that the alliance of Republican candidates currently holding the Congressional post, one of the California Assembly positions and occupying the two county supervisorial offices in San Bernardino County’s desert region were actively working out among themselves a way to keep those four elective offices sewn up between them, Sevy said, “I don’t think that’s the case. From the assemblyman’s perspective, he made it clear when he put out a statement to the LA Times in August that should Congressman Cook seek another office, he would intend to carry on the congressman’s work in the 8th District and run for that seat. The decision was Congressman Cook’s to make. From our perspective, it was a matter of waiting to see what Congressman Cook would do.”
While Judge Frangie’s ruling on Wednesday removing Rowe from the Third District supervisorial post had clearly rocked the county’s Republican establishment as well as the county’s senior governmental echelon back on their heels, the following day County Counsel Michelle Blakemore, at the direction of the board majority of Hagman, Rutherford, Lovingood and Rowe, had filed with the Fourth District Court of Appeal in Riverside an appeal of Judge Frangie’s ruling. The filing of that appeal stayed the court’s ruling, leaving Rowe, at least for the time being, in office and Knox and Lesovsky in place as her staff members. With California’s 2020 primary election scheduled for March, in which both the Third District and First District supervisorial posts are to be contested and in which the preliminary polling for the 33rd Assembly District and 8th Congressional District will be held, there is a considerable likelihood that the appellate court will not get to the matter relating to the propriety or lack thereof in Rowe’s appointment until she and Cook have captured election to the board for the term running from 2020 to 2024 and Obernolte and Lovingood have picked up significant momentum to ensure they will occupy positions in nation’s and California’s lower legislative houses at least from December 2020 until December 2022.

After nearly a decade of preparations and commitments toward extending the Gold Line light-rail commuter system eastward into San Bernardino County from the San Gabriel Mountain Foothill Region of Los Angeles County, senior staff with the San Bernardino County Transportation Authority early this month recommended that the authority’s board give serious consideration to withdrawing its support, funding and participation in the project altogether.
“Many of you have heard for many years now about the Gold Line and their efforts to build into our county,” San Bernardino County Transportation Authority Executive Director Ray Wolfe said toward the close of the September 4 meeting of the authority’s board. “An important connection is being made. The costs of the project when they opened bids and finally awarded the contract were significantly higher than the funding available to build to Montclair, and so they are building to Pomona as the initial phase. They have in their contract a firm two-year bid requirement to build from Pomona North to Montclair. That’s a $550 million cost to build 3.3 miles because they have to tear out the MetroLink tracks, move them to the south side of the corridor to make room for the Gold Line tracks. So I’m going to come back to you through committee next month and hopefully to the board in November with a recommendation that we throw in the towel. There’s another alternative that is much more cost effective and will allow us to take the funds that are identified for the Gold Line right now. There’s $80 million identified in our county. We’re short $15 million at this point. Those funds can be used for other priorities in this county. And so, look for a conversation at transit committee next month, and hopefully that conversation will carry forward to the board. I think it’s time for us to start making some tough decisions on a project that has been a challenge for many years. The recommendation that we’ll bring forward will look to solve the problem that the Gold Line has purported that they can only solve. We can do it a different way.”
Formerly known as the San Bernardino Association of Governments or SANBAG, the San Bernardino County Transportation Authority has a governing board consisting of a council member or mayor from each of the county’s 24 incorporated cities as well as all five of the members of the county board of supervisors. Wolfe’s signal at the San Bernardino County Transportation Authority’s September 4 meeting that he believes county officials would do well to seek an alternative to the extension of the light rail system, the first of its kind in San Bernardino County since the Red Line was abandoned nearly 70 years ago, did not sit well with city government officials on the county’s west side.
The San Bernardino County Transportation Authority functions as the steward of Measure I funds.  Measure I was a San Bernardino County funding initiative that imposed a half-cent sales tax collected throughout San Bernardino County for transportation improvements. Measure I was first approved by San Bernardino County voters in 1989 and was extended by a second vote in 2004 to remain in place through 2040.
It was noted that 65 percent of the county’s Measure I revenue is generated within the seven cities at the west end of San Bernardino County, and that the Gold Line is a major project as part of the strategy for alleviating traffic gridlock in that region. With the extension of the Gold Line into Western San Bernardino County on the drawing boards for over a decade with vaguer plans for it to extend as far east as San Bernardino, Redlands or Yucaipa by the middle of the current century, the cities on the west side of San Bernardino County have in part shaped their planning to provide for transit districts – consisting of higher density residential units surrounding the rail corridor – in their jurisdictions. They consider the Gold Line to be an intrinsic element of the character of their respective cities’ futures, and they were miffed with what they considered to be Wolfe’s cavalier reversal with regard to a planning process that has been years in the making and refining.
“He doesn’t believe in or totally understand the success of the Gold Line and what it has done for the people who utilize it,” Ontario Mayor Paul Leon said of Wolfe. “To throw in the towel now, without a study and without asking the people what they want, would be a travesty to the voters and the hundreds of thousands of those who are stuck on a freeway that does not move in either direction twice a day for long periods of time.”
Instead of flinching at the cost, Leon added, “SBCTA [the San Bernardino County Transportation Agency] needs to fully understand and appreciate the project, so it can explain to the residents of this county what the benefit is of seamlessly connecting the Gold Line into San Bernardino County as an affordable option into and out of Los Angeles, where many of our residents work.”
Montclair Mayor John Dutrey, who was at the September 4 meeting, reacted immediately to what Wolfe had said.
“I support the Gold Line coming to Montclair,” Dutrey said, just prior to the meeting being adjourned. He too said the inflation of the cost should not dissuade San Bernardino County officials from allowing the project to proceed. “I know when the bids came out the numbers were much higher,” Dutrey acknowledged, but he said funding augmentations would not come out of the San Bernardino County Transportation Authority’s coffers. “There’s not a commitment for this agency to pay more into the Gold Line,” Dutrey said. “The movement is to seek the $465 million for it. I think it’s wrong for us to throw in the towel. I don’t think you and I have had that discussion. You told me about your option B if indeed the funding for Gold Line is not there in the next two years. I’m a little disappointed to hear this, Ray. I just want to state that I support, and I think this region needs to support, the Gold Line to Montclair when this agency’s not being asked to pay any more money into it.”
The Gold Line is a 31-mile light rail line running from Atlantic in Los Angeles west along 3rd Street to Indiana Street to 1st Street west to Little Tokyo through a tunnel under Boyle Heights with two underground stations there, from which it continues on to Alameda Street in Little Tokyo, where the line turns north and crosses over the Hollywood Freeway with a stop at Union Station. From Union Station, the Gold Line heads north on an elevated rail to Chinatown and then crosses the Los Angeles River adjacent to the Interstate 5, continuing north/northeast, running through Lincoln Heights, Mount Washington and Highland Park. Just north of Highland Park, the route crosses over the Arroyo Seco Parkway at the 110 Freeway and continues through South Psadena and then downtown Pasadena, Old Pasadena and then enters the median of the 210 Freeway, east to Sierra Madre Villa, where east of Pasadena the route crosses over the eastbound lanes of the Foothill Freeway (Interstate 210) west of Santa Anita Avenue, with stops in Arcadia and then Monrovia, thereafter reaching Duarte and the City of Hope. Crossing over the San Gabriel River, the Gold Line reaches Irwindale and thereafter continues to its Azusa Station.
The Gold Line Construction Authority right now is in the first stages toward a nine-mile, $806 million extension of the light rail line from Azusa to northern Pomona. The track will reach Pomona by late 2025. Thereafter, the line is to be extended another 3.3 miles from Pomona through Claremont to Montclair at that city’s existing Montclair Transit Center. According to the Gold Line Construction Authority, to extend the line from north Pomona to Claremont will entail a cost of $450 million. The extension from Claremont to Montclair will run roughly $96 million.
If the San Bernardino County Transportation Authority Board follows Wolfe’s recommendation, the funding for the extension beyond Claremont will be cut off.
It is Wolfe’s contention that there are more cost efficient ways of providing commuter rail service bridging Los Angeles County with San Bernardino County, according to both Otis Greer and Tim Watkins, who oversee the San Bernardino County Transportation Agency’s legislative and public affairs division.
Specifically, Greer and Watkins maintain, constructing another set of tracks to accommodate the Gold Line exclusively would entail a squandering of most of the $96 million it would cost. Greer and Watkins say that Wolf instead proposes using the existing tracks on which the MetroLink train runs from Claremont through San Bernardino County for another form of light rail, using passenger cars pulled by what they called a “hybrid” engine.
The existing MetroLink track, which was originally established by the Southern Pacific Railroad, accommodates the Los Angeles to San Bernardino MetroLink trains, which run every half hour, as well as accommodating five freight trains over the track on a daily basis.
Wolf’s proposal to apply a version of the light rail concept, using the hybrid engines identical to what is being proposed for a light rail system now under construction in Redlands, will reduce unnecessary redundancy and save a substantial amount of money, according to Greer and Watkins.
Unlike MetroLink, which features departures every half hour, the Gold Line runs with greater frequency, meaning every five to seven minutes during peak commuting hours and every 12 to 15 minutes during off-peak hours. Wolfe believes the existing line running through San Bernardino County can accommodate all of the various trains – MetroLink, the five daily freight trains and the hybrid-drawn rail cars he intends as a replacement for the proposed Gold Line.
A primary issue, according to Wolf is the expense.
According to Greer, in constructing the Gold Line within the same rail line right-of-way where the MetroLink tracks are now placed, what occurs is that over a short span along that right-of-way, a temporary line to accommodate MetroLink trains is constructed. Once that span of temporary track is completed, it is connected to the existing track used by the MetroLink trains. Thereafter, the MetroLink track is demolished and what is then laid down in its place is a new MetroLink track and another track for the Gold Line. Thereafter, the temporary track is removed.
The creation of the temporary track entails tremendous expense and remains serviceable only for the time the other two tracks are being laid down, Greer said.
There has been an escalation in the costs of the Claremont to Montclair extension that is forbidding, Greer said. “Early on in process before bids came in, our understanding was the total cost to San Bernardino County was to be $73 million,” Greer said. Over time, while the San Bernardino County Transportation Authority remained committed to the project, Greer said, “We saw the cost going up. We were told it was going to be closer to $80 million.”
At that point, the San Bernardino County Transportation Authority had dedicated $39 million in Measure I dollars toward the project and did a joint application with the Los Angles Metro Transit Agency for a State of California Transit and Intercity Rail Capital Program grant. That application was successful and it brought in $250 million on the Los Angeles County side, which made a significant but not complete inroad on the $850 funding deficit that jurisdiction had, and provided another $41 million of the San Bernardino County portion of the funding gap, covering the entirety of the projected expense on the eastern side of the Los Angeles County/San Bernardino County border in terms of getting the line to Montclair.
Subsequently, however, when the project went out to bid, it turned out the cost of building the line from Claremont to Montclair would not contain itself to the once-hoped $73 million or even $80 million, but had escalated to $96 million.
According to the advocates of the Gold Line, certain elements of the San Bernardino County Transportation Authority, including Wolfe, are leery of the Gold Line because of its user cost. A one-way Gold Line ticket from its east end to its west end costs $1.75. Riding the MetroLink from San Bernardino to Union Station costs $13.25 round trip. Upon the Gold Line making its way to Montclair, some San Bernardino County Transportation Authority officials fear, riders will abandon MetroLink in droves in favor of transportation that costs a little more than a fourth of what it requires to use MetroLink.
Greer insisted that the San Bernardino County Transportation Authority and Wolfe are simply seeking to be responsible stewards of public money.
“Starting from the perspective of ‘What is the objective?’ I think what the county and City of Montclair want is a high quality transit system,” Greer said. “How do you provide that? We think that we can do that, save $50 million or $60 million and deliver it sooner versus waiting another nine years to deliver it.”
Greer said, “One thing missed in the argument is MetroLink has secured a substantial amount of money from the state. MetroLink wants to see an increase in its service frequency all the way to Union Station. What we are proposing is having the entire service line improved, and not just in segments. What we are proposing to do with the hybrid between Claremont and Montclair will be a pilot program to see how that service can be delivered. Right now we have service every thirty minutes. If the Gold Line is completed to Montclair, it will not be running at full capacity. With the hybrid program, we can start with one or two cars and add capacity to trains to accommodate the increase in demand. As the demand increases, the service level offered by the hybrid can increase with it.”
Greer continued. “It is the escalating costs that have driven this,” he said. “Our goal is not to remove high frequency commuting opportunities from Montclair. Our intent is to have a really serious conversation about being able to provide that service economically. Our board has an expectation of that service being provided. That [the Gold Line] is the plan that was promised. What we want to offer is a way we can provide a similar service for far less money. He [Wolfe] is asking the board to take a look at it and consider it,  but the decision is up to the board. They can reject it. He is just doing what he is paid to do, which is to provide the board with information for them to make an informed decision.”
Montclair City Manager Ed Starr said he did not want to prejudge what Wolfe’s position is before hearing from him directly.
“On Monday [September 23] I have a meeting with SBCTA to go over the conceptual plan,” Starr said. “I can speak with you in more comprehensive detail then.”
In regard to the proposal to simply dispense with the plan to extend the Gold Line into San Bernardino County, Starr said, “The city is preparing a position and we will have a position. The Gold Line is central to our effort to revive north Montclair. It is crucial not only to our transit corridor and general plan but the specific plan we have for Montclair Place. We are trying to create a transit district that is to appeal to well-educated Millennials employed in the greater Los Angeles workforce who are attracted to living in an upscale, high-density community who want to use transit to commute to their jobs in Los Angeles and the West San Gabriel Valley and Pasadena. Those are the types of Millennials with decent wages we want living in our transit corridor who are interested in using alternatives to the freeway to get to their jobs and workplaces. We want to recreate north Montclair into a suburban urban environment. We’re still a suburban area but we want to offer a lot of urban features that have appeal to an educated and sophisticated population, such as a mixed use high density commercial living environment, accompanied by high density residential, high-end rental office space. We also want to attract employment opportunities to the area, as well as a full range of transit options. Our position all along has been that our effort to reinvent north Montclair is highly dependent on transit. We already have bus service and MetroLink and ride hailing services that operate out of the Montclair Transit Center, which is one of the largest transit centers along the MetroLink and intended Gold Line corridors. It makes perfect sense that we want to add transit options and opportunities. The Gold Line is the key component. Though we have MetroLink and bus service, in all of that there is nothing penetrating into the Foothill Cities of the San Gabriel Valley. The Gold Line also will give us a less expensive commuting option. While fare on the MetroLink runs riders at least $8, a one-way ticket on the Gold Line costs $1.75.”
Starr pointed out that the downside to the Gold Line user traveling to downtown Los Angeles is that it will take an extra 15 to 20 minutes to reach that destination. Still, he said, the Gold Line offers more trips into the heart of the megalopolis than MetroLink. “The Gold Line runs more frequently during peak hours, leaving every five to seven minutes,” Starr said. “In the off-peak hours it runs every 12 to 15 minutes. The MetroLink runs every half hour. There are a lot of reason why we want the Gold Line extended to Montclair. It will provide a mix of transit services. The Gold Line falls more in the line of light rail. SBCTA is heavily invested in MetroLink and Mr. Wolfe feels there would be a decline in ridership on MetroLink if the Gold Line becomes operational and that is why the senior staff of SBCTA is resistant to promoting the extension of the Gold Line to Montclair. We believe what we are doing with regard to the buildup of north Montclair and the increase in the concentration of high density housing there will create not only a demand but a requirement for both of these services [the Gold Line and MetroLink] to carry the increased ridership that will create. The projection is that upon completion of the Gold Line there will be ridership of 5,600 per day from eastern San Bernardino County departing from the Montclair Transit Center. There will be a significant number of riders from the east end of the county arriving at the Montclair Transit Center who will transfer to the Gold Line. We will have need for both of those units in Montclair, Metrolink and the Gold Line, to carry that transit load. An argument they [Wolfe and his staff] made was that when the Gold Line reached Azusa there was a 25 percent decline in ridership from the Covina MetroLink. It is true that the residents in Azusa who were previously using MetroLink in Covina gravitated to using the Gold Line in Azusa, but in the time since then the Metrolink ridership has climbed back to its historic levels.”
Starr said the future is arriving faster than anyone can prepare for. He said that reality is reflected in the consideration that the ridership levels projected for the Gold Line in 2035 have already been reached. He said that as those using the freeway become more disenchanted with traffic snarls and three hour commuting times, and as they become aware of the other options they have, such as MetroLink and the Gold Line, they will abandon their cars in favor of traveling to work by rail.
“People who use the transit system are looking for a savings in cost, what is more convenient and what is most accessible, and what will get them to their destination quickly,” Starr said. “Those things are completely compatible with bringing the Gold Line to Pomona, Claremont and Montclair. More importantly the Gold Line is necessary to what we are doing in north Montclair. We have demonstrated to builders that we are interested in a revamped community and that we believe the transit district is attractive to the type of projects they are constructing.”
There is a synergy to having a public transportation system that offers a multiplicity of transit modes featuring through-routes to a comprehensive set of destinations, Starr said.
“We want to get a connection to Ontario International Airport,” Starr said. “To get that connection, we need an increase in ridership. If we are to get that, we need to tap into those who are traveling with one of their destinations being the San Gabriel Valley and the foothill cities.”
Establishing those transportation connections to Pasadena, La Canada/Flintridge, San Marino, Burbank, Arcadia and Sierra Madre will provide a long term economic benefit to San Bernardino County, Starr said. “The people in those communities have higher incomes than in the communities south of there, along the 10 Freeway corridor,” Starr said. “The Montclair Transit center is two blocks from the 10 Freeway. With the express lanes that are scheduled along the 10, you are talking about a seven minute trip from the Montclair Transit Center to Ontario Airport on a shuttle bus. That is a convenient service and a service that in my mind would be important to increasing airline traffic out of Ontario. This would involve those elements of the San Gabriel Valley and especially its foothill communities bringing money into this area and spending in San Bernardino County.”
Ontario Mayor Paul Leon said the future need for rail transport between San Bernardino County and Los Angeles County will increase going forward and will eventually exceed the capacity of a single rail line. The time to establish the second track is now, before the costs escalate further or things occur that will prohibit building a new set of tracks, he said.
Moreover, Leon said, the light rail solution is a newer one with a far longer life potential than the mode of transportation the MetroLink system, with its diesel engines, represents.
“I have heard those conversations about the hybrid,” Leon said, dismissively. “They are talking about a technology that will become defunct before it comes to be operational. They are reliant on fossil fuels. In California, why would you want to use a diesel train when you can move to renewable energy-fueled engines like the Gold Line?”
Leon continued, “Ray Wolfe keeps misinforming his board. He wants to spend money in Needles. We need to alleviate heavy traffic here, at the nexus of San Bernardino County and Los Angles County, one of the most heavily traveled commuting corridors in the world. We need to give people who live here an affordable way to get to work. How dumb is it not to build a straight line all the way to the airport? This will benefit not only our city but the entire region. People can use all of the parking we have at the airport and then you would have all of those people not contributing to the gridlock on the freeway. Instead they will board a train and virtually fly into Los Angeles or Pasadena or any of the San Gabriel Foothill cities, either working on their computers or getting an extra half hour or 45 minutes of sleep instead of crashing and killing one another.”
The objections that are being raised about a funding gap and using that as the basis for shutting down the project is penny wise and pound foolish, Leon said.
“The federal funds will come,” Leon said. “If you offer a transportation mode and you are one mile or less from a freeway, that triggers the availability of federal funds. [Congresswoman] Norma Torres told me, ‘Get it ready and I’ll find you the money.’”
-Mark Gutglueck