The San Bernardino City Council this week undertook an effort that might allow it to attenuate several of the provisions in the city charter deemed counterproductive and obstructive of the reforms certain elements in the city’s leadership  hope to effectuate to recover from the bankruptcy San Bernardino declared in 2012.
Nevertheless, some elements opposed to the change suggested the maneuver was an illegal one which contains fatal procedural flaws.
In California, more than three-quarters of its cities are organized under general rules applicable to the governance of a municipal entity, and are thus known as general law cities. Of California’s 480 incorporated municipalities, 368 are general law cities, represented by a five-member city council. At present, 112 California cities are charter cities. A city organized under a charter has a multitude of options as to its governance, can increase the number of its city council members, instill greater power in the mayor than is the case with general law cities, or stipulate permutations of government authority tailored to that particular city’s geography, demographics, economic circumstance, existing social, educational or vocational institutions or other peculiarities of that community as is collectively deemed appropriate, within Constitutional parameters. Most, though not all charter cities have a substantial population.
In the case of San Bernardino, provisions put into the charter by means of a citywide vote in 1939  – known as Section 186 – requires that the city’s public safety employees – firefighters and police officers – be paid on a scale equal to the average pay of police officers and firefighters in ten similarly-sized California cities.
San Bernardino has been beset with financial difficulties that culminated in the city’s filing for Chapter 9 bankruptcy in 2012. Former mayor Patrick Morris, whose eight years in office ended last year, for the last several years of his tenure  maintained that a major factor in the city’s fiscal deterioration has been excessive salaries and benefits provided to city employees and retirees. Carey Davis, an accountant by profession and a political ally to Morris, succeeded Morris in March after defeating Wendy McCammack, a former councilwoman who had long championed generous pay increases for municipal safety employees.
Section 186 effectively locks in salaries for San Bernardino’s public safety employees that are at par with or greater than those salaries received by their counterparts in ten California cities. San Bernardino, the county seat and the largest city in the county, has a population of 213,708. Yearly, city officials and police and fire union heads start with a list of California cities with populations between 150,000 and 250,000. In turns, each removes a city from that list until ten remain. Salaries are then computated upon the average pay to that particular group – firefighters or fire department management or policeman or police management – in the remaining ten cities.
Over the last several years, San Bernardino has been particularly hard hit by the economic downturn that has gripped the nation, state and region. Despite the city’s 2012 filing for bankruptcy protection, it has continued to give firefighters and police officers raises in keeping with the provisions of Section 186 of the city charter. During Morris’s rein as mayor, a schism had developed on the council over the continuation of what some characterized as too generous salaries and benefits to city public safety employees and what others maintained was simply adequate pay for policemen and firefighters.
As one of his first acts in office, Davis called for the creation of a municipal commission to consider charter changes, suggesting that the requirement that police and fire officers be provided with raises based on salaries given to their counterparts in cities free of the financial challenges San Bernardino faces should be done away with. After the creation of a citizens’ charter review committee, that panel , by a 7-2 margin, offered last May a suggestion that the city council use its authority to place a measure on the November ballot asking voters to repeal Section 186 and instead adjust salaries through the collective bargaining process.  The city council voted 4-3 with councilmen John Valdivia, Henry Nickel and Benito Barrios dissenting, to place two measures on last November’s ballot, asking city voters whether to alter the municipal charter and, in theory, reduce costs. The first of those measures would have repealed Section 186. The second measure would repeal Charter Section 254, which requires that fired employees who are appealing their terminations to the civil service commission continue to be paid until the commission makes a decision on whether or not to reinstate the employee.
The city’s police and fire unions strongly opposed the measures, and in the face of their spirited campaign against them, they were defeated.
The charter remains in place. In the current fiscal year, police department and fire department operations represent 68 percent of the spending out of the city’s general fund. Salaries make up the lion’s share of those departments’ operating budgets. A majority of the city council remains convinced that the continuation in the escalation of public safety employee pay in a city that has declared bankruptcy and is stiffing its other creditors is unseemly.
Last month, when Valdivia, the member of the city council most strongly in favor of preserving public safety salaries at current levels, was absent from a specially-called meeting of the city council for a so-called strategizing session aimed at formulating approaches to having the city exit from bankruptcy, five of the council’s members gave indication they favorably viewed adopting proposed
“operating practices for good government.”
At the Monday April 6 council meeting those proposed practices had been put into writing and were presented to the mayor, city council, city manager and city attorney for endorsement. Valdivia balked, refusing to set his pen to the paper. All six of the others – Mayor Carrie Davis, council members Fred Shorett, Jim Mulvihill, Henry Nickel, Benito Barrios, Rikke Van Johnson, and Virginia Marquesz, along with city manager Allen Parker and city attorney Gary Saenz – affixed their signatures to the document, which Saenz said was a legal “gentleman’s commitment.”
The agreement commits each of the city’s elected and top administrative and legal functionaries to a course of action and accommodation, with assigned roles for each upon which the others are not to intrude.  The two-page document in part states, “The role of the council is legislative in character, which includes the power to set policy, approve contracts and agreements and undertake other obligations consistent with the charter and code, while deferring to the discretion of management and staff to choose the appropriate means to achieve the council’s goals.  The council will make the necessary decisions to expeditiously exit bankruptcy, as well as develop and implement a strategic and tactical plan that ensures the city of San Bernardino’s success in the foreseeable future. The council will proved the resources to pursue the city’s best interests in bankruptcy court along with a robust communication plan to inform the citizenry of what is at stake.  The council, as the elected body serving all of the residents of the city, shall perform its duties and exercise its powers in a manner that serves the best interests of the entire city, rather than any particular geographic area or special interest.”
Furthermore, according to the agreement, “The mayor will build consensus with the council to create and implement a shared vision and plan of implementation to restore the city’s fiscal integrity. The mayor will establish and maintain partnerships and regional leadership roles to advance the city’s interest. The mayor will, consistent with the separation of powers contemplated by a reasonable reading of the city charter, not interfere with the discretion of the city manager in the exercise of his powers and the performance of his duties under the city charter. The mayor and council will jointly develop clear expectations of the city manager and hold him/her accountable by conducting performance evaluations at least every six months.”
The agreement stipulates that “Neither the mayor nor the council will interfere with the judgment and discretion of management staff with respect to the duties that are typically managerial in nature, such as the appointment, removal, and supervision of subordinate staff. Neither the mayor nor the council will direct departmental staff. The city manager will be the sole authority for managing city operations and directing city staff in those departments under his supervision.  The city manager will make business and policy recommendations based solely his or her independent professional judgment and best practices in the best interests of the city, rather than political considerations, and to this end shall strictly guard against interference with the performance of his duties. The city manager will have both the authority and accountability to produce a confirmable plan of adjustment for council approval by May 30, 2015. The city manager will be responsible for implementing the plan of adjustment to ensure the city exits bankruptcy as soon as possible. The city manager will be accountable for the implementation of council goals and policy and the overall performance of the city. The city manager will be responsible for ensuring that the council and mayor are fully informed on all aspects of important emerging issues.”
The agreement also spells out that “The city attorney will focus his attention and resources on the performance of his duty as chief legal officer to provide legal advice to the mayor, council and city manager, and the management of his office, and shall leave the formulation of policy and managerial matters exclusively to those officials charged by the city charter with those duties.”
Valdivia said the council was violating the law and the charter in adopting the agreement.

(April 9) The City of Needles has encountered some rough sledding in its proposed 2500 foot “Needles I-40 Interconnect Project” this week. The project was conceived of as a way to quiet the complaints of the state of Arizona, which is contemplating the construction of its own new highway on the east side of the Colorado River and threatening to bypass Needles entirely if California didn’t connect I-40 with AZ Highway 95.
The compromise project, currently being moved forward by supplemental federal assistance, would connect the I-40 at the downtown J Street exit and direct traffic through three intersections of the town to sport new traffic signals, ostensibly fast tracking vehicular traffic to the Colorado River bridge connecting Needles to AZ 95.
According to city officials, the interconnect project is “consistent with state, regional, and local plans and programs… [including] the Southern California Association of Governments Regional Transportation Plan 2012-2035, which is part of its Sustainable Communities Strategy” and one that “places more emphasis than ever before on the relationship between sustainability, integrated planning and mobility. The 2012-2035 Regional Transportation Plan outlines a transportation infrastructure investment strategy that will beneficially affect Southern California and is guided by a series of goals and objectives aimed at the need to balance the many priorities in the most cost-effective manner.
But some of the Needles land owners whose property is being appropriated by the city to accommodate the project dispute the  city’s need to seize the property in question, whether the city has an ulterior purpose in getting the property now in that it has an unannounced future design for the land that is not being disclosed and that the city’s priorities with regard to acting in a cost efficient manner have resulted in the violation of the property rights of the landowners. city
The city had purchased property in the path of the construction, while other targeted property that was not sold to them was condemned and slated to be taken by eminent domain. Nineteen property owners including the county of San Bernardino and 100 “Does” were named in the condemnation case filed by Best, Best and Krieger, the law firm representing the city of Needles on the complaint filed on January 14, 2015.
Defendants had 30 days to file their answer in the San Bernardino courthouse, 3.5 hours away from Needles. During the course of the month that followed, only one party answered the complaint, Robert J. Lopez and Ruth Musser-Lopez, trustees of a family trust land located on a rare landmark corner of Route 66, scheduled to be demolished as a part of the project. Coincidently, Ruth happens to be a political activist who ran for State Senate last year and who is also by training and profession an archaeologist, historian, and columnist who often authors stories for the Sentinel’s Glimpse of SBC’s Past.
“We have serious concerns about this project as it is designed and do not agree that it is planned with the best interest of the people and with the least harm and least impact,” Ruth Lopez said.  “The property owners held out as long as they could against the city and its representatives and attorneys who began strong arming them last spring into signing papers that would allow the city to take more land than that which was needed for the project and for purposes beyond the scope of the project. Those purposes are unrelated to the project and are intended for future uses. The city was offering a pittance in exchange not just for the land but for being able to utilize the property in ways that will have an even greater impact on our properties years from now. I don’t think the city anticipated any of us putting up a fight in court. We want the judge to hear our stories and to see the way the city has behaved badly, thinking that they can use their color of government authority to scare people into giving up their land, offering them peanuts for more property than the city is entitled to and for purposes that the city is  not entitled to use the land for, including future purposes that have nothing to do with the interconnect project.  I want to make sure that this never happens again in this state and that this bunch doesn’t go to another town and repeat the same thing.  I want to see this wrongful conduct exposed,” Ruth Musser-Lopez said.
“Most people are afraid to fight City Hall or do not have the money to even contact an attorney. They are concerned about the expenses of traveling to court 250 miles away or just don’t know what to do. In one case, an elderly religious woman was paid only $500 for her corner frontage and then was asked by the very same city officials to come provide the blessing upon the city council meeting. It was really sad, I was at that meeting to protest their wrongful take of our property and I really don’t believe that she understood what she was ‘blessing.’   She probably didn’t realize that the city can make back infinitely that same $500 over and over again with business signage on that so-called ‘sliver take’ of her land on one of the busiest corners in town. I wonder if she realizes that the attorneys who orchestrate these ‘takes’ typically make in one hour as much money as she got for her land.
“The evidence indicates that there was a much more efficient and less impairing/destructive way to move traffic from I-40 to Hwy 95 in Arizona,” Musser-Lopez continued. “There is significant evidence that the city did not do its due diligence in its planning effort nor was a good faith effort made to identify all of the potential damage of the selected alternative.”
From the J Street off ramp, downtown Needles to the bridge crossing the river, pavement rehabilitation and intersection improvements, including signals, turn lanes, sidewalks and crossings to comply with Americans with Disabilities Act (ADA) standards, some road widening, utility relocations, and some drainage improvements are to be installed.  Temporary construction easements (TCEs) and so-called “sliver-takes” (thin strips of new right-of-way to be acquired from adjacent properties) have also already been acquired by the city using threat of eminent domain and condemnation. Federal funding was obtained through a Local Assistance program of the Federal Highway Administration (FHWA) with Caltrans being delegated with FHWA’s duties for oversight with regard to compliance with the federal environmental laws.
“The City and CalTrans wrongfully exempted their own project from environmental laws, but the project should not have been exempt from the California Environmental Quality Act and since there are federal funds involved, the project definitely should not have been exempt from the National Environmental Protection Act,” said Musser Lopez. “The city plans to demolish a large historic median and wide sweeping turn lane on Route 66 that separates our family property from eastbound traffic that currently does not have to stop at a signal.   Without the median and the wide turn lane, the traffic will be closer to our yard, backed up behind a stop signal. Emissions from the vehicles stopped there will accumulate in our yard where children play and where we have traditionally had family gatherings and picnics,” Musser-Lopez reported.
“Beyond the environmental impact, we do not agree that our property is even needed for this project,” Musser-Lopez asserted. “When they started out, they were going to take five feet off of the frontage of both sides of our corner. When we began to question them, they cut the size down to just one side of our property but still wanted to take the property for future uses.   We continued to object and said that they already owned enough space to install a traffic signal and instrumentation.  The city then offered us $2000, four times as much as they had offered us originally ($500.00) saying that they had to have our land to install a large instrumentation box that would require them to make the sidewalk wider. “It was indicated to me by one of the planners that they could have easily redesigned the project or put the box on the land they already owned to the east of our property or on one of the three corners that they already had control of, but no, they were intent on taking our property and setting up a big ugly box in front of our house, using precious road improvement dollars on legal fees to haul us into court. As of yesterday [April 7], we received a new declaration newly submitted to the judge by someone we have never heard of before named “Debra Meier” who claimed to be the project manager for Parsons Brinckerhoff, the firm handling engineering and environmental certification for the project.  From her submission, we believe as hype the entire ‘giant traffic signal box’ scenario propounded by city manager Rick Daniels as a justification for taking our property.  There is no giant box in the design plans that Meier has newly submitted on the record.
Further, this mapped plan, which we never saw before now, is the evidence that we needed to show that the city had already seized our land a few years ago and is definitely in trespass…and now wants the judge to legalize this wrongful trespass without any compensation to us at all for the city’s past use.  There are two underground utility vault type boxes for telephone utilities already partially on our land and the city’s existing sidewalk is partially on our land.  These “telephone vaults” are apparently used or operated by Frontier Communications, the local telephone company, so clearly Councilman Tony Frazier, who is a Frontier employee, likely had a conflict of interest when he voted to have the city begin the eminent domain process against us.   So in other words, up until yesterday [Tuesday, April 7], this plan map had been withheld from us, but apparently, because of our declarations to the judge showing that our land was not needed and that the city already had a sidewalk and room for the utility pole, the city had to show the engineered drawings to the court.  The drawings clearing show the city’s sidewalk and vaults in trespass.  So beyond what we see as the fraud of the city manager’s purportedly needed “giant box” and the councilman’s conflict of interest, we see this submission of evidence as an admission of the city’s existing trespass and guilt.
“We do not agree that the City has a right to take our property,” Musser-Lopez continued. “We absolutely do have a problem with the city’s motion for prejudgment possession and we continue to object to the city taking possession of our property particularly before a trial since the city has not proven its right to take. So there we were in ‘pro per’ battling City Hall in court and looking at the project closer when we found out that the city and Caltrans totally neglected to assess the impact of the project on numerous historic properties including a landmark corner of Route 66 and some 100 year old homes that are part of a larger downtown historic district.   I wrote about that in the Glimpse a few weeks ago. “The City, CalTrans and the Federal Highway Administration are not in compliance with Section 106 of the National Historic Preservation Act as codified in 36 CFR 800 and they are certainly not exempt from the Archaeological Resources Protection Act (ARPA) which makes it a crime to destroy archaeological properties.”
The city defends the project, maintaining its benefits more than offset the hardship imposed on any of the landowners, including the Lopez Family. Those in opposition are not considering, the city asserts, that 2012-2035 Regional Transportation Plan’s goals will be of benefit to the city and its residents.
City officials suggested Musser-Lopez is not seeing the big picture. The  Needles I-40 Interconnect Project and its completion, according to the city, represents an investment in “improving regional economic development and competitiveness, an effort to maximize mobility and accessibility for all people and goods in the region, ensure travel safety and reliability for all people and goods in the region, preserve and ensure a sustainable regional transportation system, protect the environment and health for our residents by improving air quality and
encouraging land use and growth patterns that facilitate transit and non-motorized transportation, such as biking and walking.”
But Musser-Lopez retorted that it is the city that is not considering what it is doing in the context of the interests of its residents and the preservation of historic vistas and resources.
“Many in our community think the project is a waste of public funds, will cause more harm than good and that it is wrong to bulldoze the landmark Route 66 corner median and other properties. There was not even an attempt to document that those historic resources  are here and now they will be gone,” Musser-Lopez said. “The city asserts that they are creating a two-lane connector route, but that is a fallacy. The route will go from two lanes to one lane then back to two lanes then to one lane again.The council nixed the option of a short ¼ mile non-stop elevated two lane boulevard in both directions, a connector route that would have alleviated pass through traffic in the local community. The council instead opted for ratcheting vehicles around three 90-degree turns with traffic signals. How can they say this is a two lane road in both directions? It’s not. It’s a wind-about path, with the city acquiring land where they can install their profit-making signage and set up traffic signals.”We will now get all the exhaust and fumes from trucks and vehicles stalled behind red lights.”

(April 7) The county department of agriculture is using a dog to detect pests and restricted plants at parcel reception/shipping centers and the county’s agricultural inspection station in Yermo.
Last year, the board of supervisors approved continuing a program that involved a two-dog team to  perform pest surveillance inspections at parcel shipping centers using canines to detect the presence of any unwanted pests or plant material in unmarked parcels entering the State of California. The state had made revenue in the amount of $275,000 available to the county to defray the cost of the program.
However, according to former San Bernardino County Agricultural Commissioner John D. Gardner, in August 2014 the  agreement put in place between the state and the county specifies the lower amount of $182,128 “due to the recent discontinuance of one detector dog team due to an injury/illness of the canine.”
This week the board of supervisors voted to accept from the state additional funding of $8,500, bringing the cost of the program running during the period of July 1, 2014 through June 30, 2015 to an amount not to exceed $190,628.
The request for that additional funding was made by the county’s new agricultural commissioner, Roberta Willhite.
“Once a pest or plant is located within a package, the plants are inspected and if a pest or disease symptoms are observed; the samples/specimens are submitted to the CDFA Plant Pest Diagnostic Laboratory for identification. Upon confirmation of a non-native harmful species, or materials proscribed by quarantine regulation, the plants are returned to the shipper or destroyed. Canines have been utilized with great success to detect plant materials in unmarked parcels. These inspections deter the spread of plant pests, diseases or other harmful organisms that may pose a threat to California’s environment and agricultural industry and the economic well-being of the state.”
The agreement for these inspection services was first authorized by the board of supervisors in 2006, and it has been renewed on an annual basis thereafter. San Bernardino County is down to a single pest inspection canine because the state had insufficient funds available in 2014-15 to provide for the acquisition and training  of a replacement detector dog team.
The original $182,128 provided to the county by the state was earmarked for reimbursement of staffing costs based on an established hourly salary and benefit rate for employees assigned to the program, canine care, and operating expenses. This week’s amendment to that contract was intended to compensate the agricultural department for an increase in veterinary care and boarding expenses.

(April 7) As that city’s lawyer vowed in January, Ontario’s legal team filed an appeal with the California Fourth District Court of Appeal on Tuesday challenging a Riverside County Superior Court judge’s ruling upholding Ontario’s agreements with Los Angeles giving the larger city control and ownership of Ontario International Airport.
In January Riverside Superior Court Judge Gloria Connor Trask issued two tentative rulings that the 1967 joint-powers agreement between Ontario and Los Angeles that gave Los Angeles managerial and administrative control of the airport and the 1985 vote by the Ontario City Council that deeded the airport to Los Angeles were valid. On February 26, Trask confirmed those rulings. On March 19, Trask signed an order to that effect which was put into the court record.
Ontario, through its law firm, Washington, D.C.-based Sheppard Mullin Richter & Hampton, maintained in court papers filed last year that those agreements are not binding. Trask said Ontario’s opportunity to rescind the transfer of the airport once existed but elapsed in 1989 because of the statute of limitations.
In January, Andre Cronthall, Sheppard Mullin Richter & Hampton’s lead attorney on the case, told the Sentinel he believed an appeal of the case is inevitable, no matter how the case is hashed out in Trask’s court. He said he anticipates Los Angeles will appeal the case if the matter is adjudicated in Ontario’s favor, just as, he said, Ontario will not capitulate if it loses at the Riverside County Superior Court level.
“Whatever Judge Trask ends up doing, there is a good likelihood the court of appeal will end up ruling on most, if not all, of the issues being tried,” Cronthall said in January.
Cronthall made good on that prediction on April 7, when he filed a petition to the Fourth District Court of Appeal in Riverside which asserted that a vote of the residents of Ontario was required in 1985 in order for the airport to be given to Los Angeles. Trask’s ruling that the elapsing of the statute of limitations now prevents that transfer from being overturned is in error. “A statute of limitations cannot make valid that which is void,” according to the petition.
Ontario entered into a joint powers agreement with Los Angeles in 1967 to have the megalopolis use its department of airports run Ontario Airport. In 1985, after all of the criteria spelled out in that original joint powers agreement were met, Ontario’s city council, with then-mayor Robert Ellingwood absent, voted 4-0 to deed the airport to Los Angeles at no consideration. For several decades, Ontario was well satisfied with that arrangement. Things have changed, however.
Under Los Angeles’s management of Ontario International, the airport prospered, with its ridership increasing from less than 200,000 in 1967 to 7.2 million in 2007. Over that forty year period, Los Angeles made substantial improvements to the airport, including paving its gravel parking lot, laying down a second, entirely new east-to-west runway over its obsolete northeast-to-southwest runway, modernizing its existing east-to-west runway, including the widening of taxiways and the addition of storm drains, modernizing its control tower, and constructing two ultra-modern terminals at a cost of $270 million, augmented with a world class concourse.
With the economic downturn of 2007, however, air travel in general declined and over the next six years ridership at Ontario International shrunk to just over four million per year. Meanwhile, Los Angeles, which had embarked on a modernization effort at Los Angeles International Airport in 2006, continued with that effort. Passenger traffic into Los Angeles zoomed to astronomical levels, leading to the perception that Ontario was being given short shrift by Los Angeles. In 2011, Ontario began a campaign to take back ownership and control over the airport. and that campaign has grown ever more vitriolic.
Los Angeles officials have hunkered down in the face of the lawsuit and the accompanying campaign being carried out by the city of Ontario to convince the public that Ontario deserves to reassert ownership over the airport. Meanwhile, Los Angeles’s lawyers are pursuing a steady legal strategy of attempting to have the case dismissed.

(April 7) Without carrying out a competitive bid, the county board of supervisors this week accepted the recommendation of county real estate services director Terry Thompson to extend, at a cost of more than $3 million, for five more years the lease the county had in place for a 25,000 square foot building that houses the transitional assistance department and the department of aging and adult services.
More than 21 years ago, on November 23, 1993, the board of supervisors, which was then composed of Marcia Turoci, Jon Mikels, Larry Walker, Jerry Eaves and Barbara Cram Riordan, approved a ten-year lease with Pioneer Partners, Inc.  for 15,000 square feet of office space at 56357 Pima Trail in Yucca Valley to house the county’s East Mojave transitional assistance and department of aging and adult services offices, with two five-year options to extend.  The original term of the lease was from February 1, 1995 through January 31, 2005. In the twenty years since the lease was originally approved, subsequent boards approved four amendments, in July 1996, November 1996, August 2002 and April 2010 to extend the term through January 1, 2015, increase the size of the lease area to 25,000 square feet, and amend certain other provisions of the lease.
More recently, the county department of human services requested, according to Thompson, that “the real estate services department obtain authority to negotiate further extensions of the lease as an alternative procedure to a formal request for proposals as provided in County Policy 12-02 as there are no further options to extend the term of the lease, and the location continues to meet the requirements of the departments.”
This week, Thompson joined with Nancy Swanson, the director of the county’s transitional services department, and Ron Buttram, the director of the department of aging and adult services, in drafting a recommendation calling for the extension of the leasing arrangement with Pioneer Partners
On March 26, 2015, the county administrative office approved a capital improvement
program request  to add two five-year options and extend the term of the lease
for five-years by exercising one of the options. The board’s action in approving the five-year extension extends the county’s occupancy to twenty-five years. County Policy 12-02 requires a thorough and detailed review by the county administrative officer or his designee to validate the need for and provide an analysis of any lease with a term of more than twenty years.

(April 10) Video news footage recorded by a Los Angeles television station helicopter of several San Bernardino County deputies beating a surrendering unarmed suspect after an extended pursuit over rough desert terrain has resulted in an investigation of whether excessive or unnecessary force was used in making the arrest.
According to a sheriff’s department press release, On Thursday, April 9, 2015 at 12:12 p.m. deputies from the Victor Valley station went to [a residence in] the 25300 block of Zuni Rd., an unincorporated area of Apple Valley, to serve a search warrant related to an identity theft investigation.  Upon arrival the suspect, Francis Pusok, fled the location in a vehicle.  Deputies pursued Pusok through the unincorporated area of Apple Valley, the town of Apple Valley and further into the unincorporated area of Hesperia.  Pusok abandoned the vehicle southwest of Bowen Ranch and fled on foot.  Deputies were actively searching for Pusok on foot, using off-highway vehicles and helicopters.  Within minutes, deputies received information that the suspect came into contact with a group of people near the Deep Creek Hot Springs and stole a horse.  He fled on horseback on dirt trails, through very rugged, steep terrain, causing numerous injuries to the horse.”
The six minute and two second long Newschopper 4 video  starts from a vantage point with a top view of both Pusok, wearing red clothing, on the horse and a hovering sheriff’s department helicopter. Pusok rides in the opposite direction from the sheriff’s department helicopter’s heading. The Newschopper 4 video stays trained on Pusok and the sheriff’s helicopter moves out of the field of view, while Pusok appears to be scouring the lay of the land for some route of escape.  At 44 seconds into the video, the sheriff’s helicopter again comes into view, approaching Pusok and the horse head on, flying low and passing over horse and rider at 46 seconds. This clse encounter with the helicopter spooks the horse and both the horse and rider brush against some scrub vegetation, at which point a deputy on foot comes into the Newschopper 4 camera’s field of view. At 48 seconds, Pusok, unable to deal with the jostled horse, falls from the saddle and hits the ground. He initially, but only fleetingly, attempts to hide behind another clump of scrub vegetation. He then gets up and attempts to flee, as a second deputy comes into the camera’s field of vision. At that point, 56 seconds into the video, the first deputy discharges his taser at him. With the second deputy approaching, Pusok appears to be totally compliant, laying out prone on the ground, with his arms and legs spread.  At second 58, the first deputy tasers him again, causing Pusok to react by springing upward momentarily, but he immediately lies down once more and is prone and spread out at the minute mark of the video. At one minute and one second he appears to be complying with the deputies’ commands by placing his arms behind him at the small of his back as he lies face down on the desert floor. Simultaneously, however, the second deputy kicks him in the head. Over the next 19 seconds, with the horse nearby, both deputies appear to be kicking and striking him and then pummeling him on the head, neck and upper and mid-torso with what appears to be the taser gun or their fists. At one minute and twenty seconds, two other officers come into the camera’s field of view. At 1:22 one of the officers slaps the horse on the rump and it moves away from the fracas. Initially, the other just-arrived officer, at 1:24, pulls the second officer back from Pusok but only seconds later, at 1:28 into the video, he too begins to stomp and beat Pusok. The rough treatment of the suspect continues for the next 14 seconds. At 1:42 two other deputies have moved up to join the swarm over Pusok and by 1:46, yet two more. One of the officers appears to continue to kick him about the head while four others appear to be trying to pin him to the ground. At 2 minutes and one second, the concerted beating appears to have stopped. With six deputies hovering over him, an effort to handcuff or tie him in some fashion seems to be progressing. But at 2:19 and again at 2:23, one of the deputies appears to stomp on him. The last unequivocal overt display of physical force against Pusok on the video comes at 2:34 through 2:38, when two other deputies appear to be punching and kicking him. From 2:53 through 2:58, with several of the deputies yet hunched over Pusok, one of them is visible swinging his arm back and forth rapidly, though it is not clear whether he is punching Pusok or perhaps cinching up some form of ligature.
From the video, it is evident that at least ten deputies other than the helicopter personnel were on the scene when Pusok was arrested. According to the sheriff’s department press release, “A sheriff’s helicopter inserted a team of deputies in the area of Hwy 173/Arrowhead Lake Rd. to take the suspect into custody.  Deputies made contact with Pusok and as they approached, the horse threw him off.  A taser was deployed but was ineffective due to his loose clothing.  A use of force occurred during the arrest.  An internal investigation will be conducted regarding the use of force.”
The press release noted that “Pusok was transported to a local hospital with unknown injuries.” It also state that “Three deputies were injured during the search, two suffered dehydration and a third was injured when kicked by the horse.  All three were transported to the hospital for treatment.”
The press release, which bore the routine suggested headline, Deputies Arrest Suspect Following Vehicle/Horse Pursuit, did attribute the following statements to sheriff John McMahon, “The video surrounding this arrest is disturbing and I have ordered an internal investigation be conducted immediately. In addition, members of the specialized investigations detail are responding to conduct the criminal investigation.”
By sundown Thursday night, several media outlets, including three in Los Angeles, had picked up on the incident. A former San Bernardino County sheriff’s department sergeant who had repeatedly reviewed the video, told the Sentinel the widespread attention to the incident would force McMahon to undertake an exacting review of what had occurred and that the likely firing of at least three of the deputies and perhaps as many as five will result.
“They obviously thought the news helicopter was 40 King [i.e., a sheriff’s department helicopter],” he said. “Everyone who is there will have to write a report. With what is on video, they are not going to have an easy time of it. The ones who weren’t involved will have to sell the ones who were down the river. This isn’t good.”
And it could get worse, he said, if Pusok sustained substantial injuries, as appears possible. “If the suspect is permanently disabled, this could cost the county and it would take the investigation into a whole other direction.”
The likelihood of any of the deputies being prosecuted, the retired sergeant said, “would be up to the district attorney.”
Ironically, the incident came just a day after McMahon publicly stated he stood by the department’s taser policy. At least some of the deputies involved in the Thursday incident might seek refuge in the claim that Pusok, who appeared to be compliant shortly after falling from the horse, grew combative after being shot with the taser, thereby justifying their action.
Pusok has had previous run-ins with law enforcement, having been arrested on at least five occasions and convicted of robbery, animal cruelty, resisting an officer, fighting/using offensive words, and driving at an excessive speed on a sidewalk in San Bernardino County.  He has served time in county detention centers but not in state prison.

By Count Friedrich von Olsen
This week I am going to take up the rather dangerous topic of abuse – yes abuse – of the trust we are putting in our prosecutors. Lest anyone get the wrong idea, be it known that I am vigorously pro-law enforcement. The police have no more faithful friend than I. I believe in the majesty of the law and have the utmost respect for those who enforce it. But for my respect to abide, it must be justified by prudent action on the part of the lawgivers…
What brings me to this topic are two cases, both of which arise out of the Victor Valley. One is the killing, or at least suspected killing of Jodette Wren. The other is the prosecution of Charles Merritt, the accused murderer of the McStay family. I am sorry to say that, while I am by nature inclined to give the police and prosecutors the benefit of any doubt, I am moved to believe that the suspected and charged perpetrators of the Wren and McStay murders are very possibly and perhaps likely innocent…
Let us take the Wren case first. This we know: On March 28, the body of Jodette Wren was found inside her home on Lindsay Street in Hesperia by sheriff’s deputies responding to a call. They promptly arrested her 55-year-old husband, Christopher Wren on suspicion of killing his wife. Mr. Wren was kept in custody on a no-bail hold, which clearly implies that the sheriff’s department – and prosecutors – represented to the court that they had probable cause to believe he was responsible for his wife’s death. But Mr. Wren has since been released from custody and no charges have been filed. There is no indication in court records at all of his future need to appear in court…
The Merritt case is far less obscure. Like just about everyone, I first learned of that matter in 2010, shortly after Joseph McStay,  his wife Summer, and their two sons Joseph Jr. and Gianni went missing from their San Diego County home and San Diego County authorities were seeking the public’s help in trying to locate them. There was a report they had likely abandoned their vehicle in San Ysidro before crossing, for some mysterious reason, into Mexico. It was baffling at the time, and I remember some intense speculation as to why the McStays would need to vanish south of the border, but with the march of succeeding events and all of the other issues of my life, in time the episode receded from my immediate consciousness. Then in October 2013, the McStays sprung back, unfortunately not to life, but to the fore of my and everyone else’s attention when their corpses were unearthed, not in Mexico or the Anza Borrego Desert in San Diego County but very close to home, here in San Bernardino County, in the desert just north of Victorville. Thirteen months later, in November 2014, Charles Merritt, who had business dealings with Joseph McStay in a water fountain and landscaping decoration business and who had attended Apple Valley High School and in recent years had a business in Hesperia, was arrested and charged with the four murders. All of the law enforcement personnel involved in the case expressed confidence in the case against Merritt…
I must say, I am a little ashamed. I am ashamed because I assumed that both Mr. Wren and Mr. Merritt were guilty. I knew very little of the facts, yet I assumed their guilt. In that respect, I am not much different from the prosecutors. In another respect, there is however a vital difference.  I am just an observer. The prosecutors are professionals. They can’t just assume.  They can speculate in formulating their approach to gathering facts. But in making their case they cannot speculate. They must marshal those facts and evidence. Presenting speculation in lieu of facts is intellectually dishonest and an insult and abuse of the public they are in place to serve. To do so is a blot on the prosecutorial profession…
The district attorney’s office, which supported holding Mr. Wren without bail, is now seeking to get as far away from him and the matter as possible. My conclusion is he had nothing at all to do with the death of his wife. I can only imagine the horror of losing your spouse and then being accused of murdering her. Recounting Mr. Wren’s experience of the last two weeks would require the skill of no less a talent than Franz Kafka…
In November, when Mr. Merritt was arrested, my curiosity was naturally piqued and I made my typical round of inquiries. I spoke directly with a prosecutor in the San Bernardino County District Attorney’s Office who assured me that Merritt was guilty. “We wouldn’t be charging him if we did not have substantial physical evidence,” I was told. I accepted that at face value. But two months later, the first indication that the case against him was shaky came when 18 media outlets went to court seeking the search warrants and arrest warrants pertaining to the McStay/Merritt case and all of their attendant affidavits. The district attorney’s office opposed that request, asserting the release of the 25 sealed warrants would “hamper the ongoing investigation.”  This was two months after Mr. Merritt was not only arrested but charged. He was in custody with no chance whatsoever of being released. He had no means by which to destroy or compromise any further evidence the sheriff’s department or prosecutors were seeking. Moreover, why would that be an issue anyway? He had already been charged. With its opposition to the release of the search warrants and affidavits, the district attorney’s office was acknowledging that the case so confidently touted in November was far less solid than they assured everyone at the time…
My next indication that something is amiss in the Merritt case came last month when I was told, again by someone in the district attorney’s office, that the case against Mr. Merritt is entirely circumstantial. Gone was the earlier suggestion that hard physical, indisputable forensic evidence tied him to the murders. What we have, it seems, is that Joseph McStay and Charles Merritt were in business together, there was some order of falling out between them, and the McStay corpses turned up in an area near where Merritt lived and worked and with which he was familiar. This may be buttressed by a showing that Mr. Merritt’s whereabouts a little over five years ago when the McStays went missing can’t be entirely accounted for, translating into the possibility he was in San Diego County when they disappeared. Motive, means & opportunity are an investigator’s standby. Motive: a business dispute. Means: Merritt’s theoretical access to whatever type of instrument was used in the killings. Opportunity: Merritt’s knowledge of where the McStays resided, his ability to drive there, and his ability to lure the entire family to a remote location. Not the strongest circumstantial case, but I admit, it is still a circumstantial case. Will it convince a jury? I am not so sure…
The district attorney’s office has caught a break in that regard. It will not need to go up against Clarence Darrow or F. Lee Bailey or Alan Dershowitz to prove to 12 of Merritt’s peers he performed this heinous act. Rather, Charles Merritt is representing himself. The quip goes that any lawyer representing himself has a fool for a client. In this way, I suspect he may be outlawyered. But from what I can tell, he is earnest, and he is pushing for an early trial, this summer, despite the prosecution having flooded him with 10,000 pages of documents relating to its investigation, which he must, from his jail cell, sift through to find exonerating evidence. In the Old West, they scheduled the trial for eight a.m., the sentencing for ten a.m. and the hanging for noon. That the prosecution is in no hurry in making its case against Mr. Merritt tells me it doesn’t really have its ducks lined up. That he wants to get this before a jury as early as he can tells me he believes in his innocence…
My high regard for the law and the police and the prosecutor’s office is tempered by my realization that those institutions are not infallible. I have never been suspected of, let alone charged with, murder. I can disclose to you, trusted reader, that more than half a lifetime ago I was arrested and charged with grand larceny. This particular piece of unpleasant business had to do with a large shipment of manufactured goods en route from Italy, where they had been produced, to Buenos Aires. The shipment had made it as far as Marseille, where I had substantial dockside warehousing. The cargo was offloaded and placed in the warehouse, awaiting transfer to another ship, which was to ferry it to Lisbon, where it was to be transferred to yet another ship that would take it across the Atlantic to Argentina. There was a delay in the arrival of the ship that was to take the goods from Marseille to Lisbon, and I was obliged to keep the material in my warehouse almost two weeks longer than I had anticipated. As the result of what would otherwise have been a routine check, a maritime facility inventory clerk, an agent of the French national government, noted the presence of the goods, the lading receipts for which were out of date. When my warehouse manager was unable to produce transit documentation for the massive amount of material on hand, an inspector with the Marseille Police Department was contacted, who immediately took my unfortunate employee into custody. The next day, three gendarmes descended upon me while I was at my office in Nice. Once they satisfied themselves with who I was, they refused to answer any of my inquiries but insisted that I come with them to the train depot. There I was handed off to another officer, who subjected me to the indignity of handcuffing my right wrist to his left wrist. We boarded a train and a few hours later at the station in Marseilles I was turned over to the same inspector who had arrested my warehouse manager. After some perfunctory questioning, he deposited me into the Marseille jail. Thereafter, I spent nine days with some of the most charming gentlemen you would ever want to meet, punctuated only by four or five rounds of questioning by the police inspector, who was absolutely impervious to, and scoffingly dismissive of, my attempts to explain what so much unaccounted for material was doing in my warehouse. The matter was not resolved until, through a tortuous series of communications relayed through the Marseille Police Department and the Nice Police Department, an inspector in the latter city obtained entrance to my office, and, armed with the combination I was obliged to surrender, opened my office safe to find the bills of lading for the goods which these ministers of French Justice had heretofore insisted were stolen…
I bore you with my history only to illustrate that for Mssrs. Wren and Merritt there exists the real possibility that the damning appearance of circumstance may not, in actuality, bear out their guilt when a full and unbiased rendering of the facts is made…

By Mark Gutglueck
Richard George Manley was San Bernardino County’s Second District Supervisor from 1958 until 1962. Before that, he broke ground as Upland’s first city manager.
He was born in Ontario on May 27, 1890, the son of Robert and Olinda (Northcott) Manley. His father had been the superintendent of the San Antonio Water Company from July 1, 1896 until he retired on April 1, 1929.
Richard Manley obtained his elementary education in Ontario and had two years at Chaffey High School  when, through familial advantage, he was offered employment at the age of sixteen with the San Antonio Water Company measuring water in high mountainous areas.  Rather than dropping out of school, however, he attended night courses and worked toward obtaining his diploma. After he was appointed as a water tender and could work nights, he returned to Chaffey’s day courses and graduated. In 1915, Manley left the water company and entered Pomona College, where he completed pre-engineering classes before enlisting in the Coast Artillery at San Pedro during the First World War, then known as the “Great War.” Prior to the end of hostilities, he graduated from the Army Corps of Engineers’ Officers Candidate School with the rank of lieutenant.
After he was demobilized, Manley entered Stanford University to study engineering and was within six weeks of graduation when the city of Upland offered him the position of city engineer. He did not turn that opportunity down, and did not obtain a bachelor’s degree. from Stanford. Before he left Palo Alto, he married Marjorie Lowe, an Upland Elementary School teacher in December of 1920. They had two daughters, Roberta and Dorothy.
The position as city engineer of Upland gradually evolved to that of city manager, when, in 1930, that office was formally created.  This was the same year that Manly at last completed the requirements for his civil engineering degree by attending night school at the University of Southern California.
During his 35-year tenure as Upland city engineer and its first city manager, Manley put his early training with the San Antonio Water Company  to good use: he supervised the design and construction of nine municipal water reservoirs, some of which remain in service. He also pioneered the construction of several local flood control facilities. In logical sequence, following the Flood of 1938, he served on the Flood Control District’s Zone 1 Advisory Committee from the time it was formed in 1939 until 1955. Although never an officially appointed member, he was so active on that committee that he frequently voted on motions and acted as secretary in the absence of that individual.
In 1947, Manley completed the requirements for his master’s degree in public administration by attending night classes at the University of Southern California.
Marjorie Manley died in September 1951. In October 1952, Mr. Manley married Dorothy (Carlton) Grier, widow of former Second District Supervisor C. E. Grier.
Manley  retired from city service on December 31, 1955, but continued to serve on various flood control and water conservation committees, lead the annual fund drives for the Red Cross and other charitable organizations and to hold a directorship with the San Antonio Water Company, the Upland Housing Authority and the Upland Savings and Loan Association.
His many friends lured him out of retirement to seek the Second Supervisorial District seat, which he won in a runoff contest at the general election of November 4, 1958. He served with distinction for four years, but declined to run for re-election in 1962. For the next three years before his sudden death at age 75 on August 18, 1965, Mr. and Mrs. Manley devoted much time to travel, both about the United States and abroad.
Thus ended the distinguished career and life of a dedicated conscientious public servant, who gave unselfishly of his time and effort to the betterment of his community by participating in many civic and service organization. He was a member of the Chino Basin Water Conservation District from 1949 to 1961 and its president from 1957 to 1961. Held a life-membership in the International City Manager Association. He was a member of the First Methodist Church of Upland, the Ontario Elks Lodge, the Upland Masonic Lodge and the American Society of Civil Engineers. He was a president of the Upland Rotary Club and a board member of the League of California Cities. He was the president of that league’s city managers’ section from 1936 to 1938. Mr. Manley was survived by his second wife, Dorothy, two daughters,  Roberta (Mrs. Fred C.) Strohte of Upland  and Dorothy (Mrs. Robert A) Hessemer of Sacramento, two sisters, Miss Ida Manley of Ontario and Mrs. Edwin Porter of San Clemente, a brother, Robert Manley of Ontario and six grandchildren.

(April 10) The San Bernardino Public Employees Association’s position as the preeminent bargaining unit for the county government’s rank and file continued to around this week with the announcement that 671 Superior Court employees have signed on with Service Employees International Union Local 721 and are thereby withdrawing their membership in the association, known by its acronym SBPEA.
In an election held April 8 at the San Bernardino Justice Center, 386 ballots were cast, including ones from both court reporters and  employees of the court’s support services unit. There were 253 votes in favor of SEIU and 124 to remain affiliated with SBPEA. Five votes were entered for no representation and four were voided.  The 368 court employees participating in the vote controlled the destiny of labor representation for all of their colleagues. All 671 of those working in the courts will now be represented by SEIU.  SEIU is the acronym for Service Employees International Union.
At SEIU Local 721 headquarters, president Bob Schoonover and the staff around him were gloating over their most recent coup.
Two years ago, dissident SBPEA members began pushing for the decertification of the association as their representative. Talk among some at that time called for switching to the IBEW, the International Brotherhood of Electrical Workers. That move was shot down in short order and last year, a move to oust SBPEA in favor of SEIU began. A comprehensive switchover of all of the 12,000 county employees represented by SBPEA to SEIU failed, and SBPEA President Deidre Rodriguez expelled some of the most vocal dissidents and successfully sought a court order banning SEIU from openly courting SBPEA members.
But discontent with SBPEA has persisted, and in February  SBPEA announced to its membership a tentative plan backed by the association board to affiliate with the Teamsters to increase the association’s leverage at the bargaining table and secure better terms in labor contracts.  But that did not cool the secessionist fever among some of its members and in March 840 members of the association’s professional unit opted out of SBPEA in favor of joining SEIU.
The vote on SBPEA’s affiliation with the Teamsters is ongoing and the remaining 11,000 county employees who are SBPEA members have until Monday to cast their ballots on that question.

The rock wren (Salpinctes obsoletus) is the  only species in the genus Salpinctes.
A small songbird of the wren family, the adult rock wren is almost five inches long, with grey-brown upperparts and white and black dotted  pale grey underparts, merging into a light brown or cinnamon rump. There are buffy tips on their outer feathers, and they sport a broad dark tail band. These birds have a light grey line over each eye on a head that is dull grey-brown on crown and nape.  The face of a rock wren is greyish and finely spotted with white and dark. The chin and throat are whitish. They have a long slightly decurved thin bill, a long barred tail and dark legs.
They range from southwestern Canada south to Costa Rica, though on occasion some will vagrant for a season in the Eastern United States.  The northern populations from the central Unitied States and Canada migrate to warmer areas in the south in the late fall and winter. But some are permanent residents in warmer habitats, including those in San Bernardino County.
They are fond of arid or semiarid areas with exposed rock; desert to alpine habitats.
They actively forage on the ground, around and under objects, probing with their bill as their extraction too, gleaning its prey from rocks and sometimes poaching insects from spider’s webs. It’s primary diet is insects, but will dine upon spiders if they can be found.  They often bounce up and down among rocks while feeding. The rock wren will also capture flying insects by hopping vertically from the ground. On the ground, it will probe with its bill for food, mainly insects and earthworms. The Rock Wren does not drink water, but instead hydrates from its food.When five rock wrens were pent up in a cage together, the supply of water provided to them did not diminish at all, as they did not sip from it.
They seek out dry rocky locations, including canyons, for breeding grounds, building a cup nest in a crevice or cavity, usually among rocks. A pavement or walkway of small, flat stones or pebbles is usually constructed by the rock wren to lead to the nest cavity. Though the nest is normally contained in a crevice that is out of sight, this walkway betrays the nest’s location.Ornithologists have yet to ascertain what the function of this pavement is.
During breeding season, a male establishes its territory and sings from rock promontories to attract females. Each pair is monogamous and solitary nester, and lasts through one season.
Rock wrens have a remarkably varied trill, which becomes ever more so during the nesting season. The male rock wren boasts an impressive repertoire of 100 or more song types, including buzzes, trills, chatters and whistles, many of which seem to be imitations of other birds or sounds in nature or man-made ones, such as cell phone rings.
The female lays five to six glossy white eggs, finely spotted of reddish-brown. Incubation lasts about 14 to 16 days, by female alone, occasionally fed by the male. Altricial chicks are fed by both parents during about two weeks. The young fledge at about 14 to 16 days of age, and parents feed them for about a week.
At this time, young become independent for food, but they remain for about one month in the parents’ territory.
This species may produce two to three broods per year.
A rock wren bobs its body upon being alarmed.  Like a woodpecker, the rock wren roosts in vertical posture.
As a species, the rock wren appears to be declining throughout some parts of its range. Birds are preyed upon by snakes and mammals. However, the rock wren remains currently widespread and common, even with increased incidence of nest parasitism by the brown-headed cowbird.
A group of wrens is referred to by many collective names, such as a “chime,” “flight,” “flock,” and “herd” of wrens.