(December 8)  The city of Chino, Lewis Operating Company and Lennar Homes have agreed in principle to share the cost of building a water treatment plant that will accommodate more than 14,000 new homes.
Lennar and Standard Pacific Homes are developing the College Park subdivision within the city of Chino, which upon completion will entail a total of 2,200 residential units in the College Park Specific Plan area. Thus far, 851 of those residential units have been completed and granted occupancy permits by the city. Lewis Operating Company, the successor to Lewis Homes, has an entitlement to build a total of 11,976 residential units within The Preserve Specific Plan area. Thus far, the city has granted occupancies to approximately 1,946 completed units in that subdivision, known as The Preserve.
At its November 5 meeting, the Chino City Council voted 4-0 to approve a memorandum of understanding with Lewis Operating Company and LS College Park LLC for the completion of a 3,500-gallon-per-minute  water treatment plant in Ontario.
While there were initial reports that the city would put up $2 million toward the cost of the water treatment facility, according to Jesus Plasencia, Chino’s associate engineer,  “The financial contribution by each party, including the city, has not been determined as of yet because the agreement terms are still being negotiated by the three parties.”
While the treatment facility will be located across the city limits in Ontario, it will be devoted entirely to serving properties within Chino and the city of Ontario is not participating in the project.
“Ontario is not a party to the 3-party agreement between the City of Chino, Lewis Operating Company, and LSCP (Lennar/Standard Pacific),” Plasencia said. “The proposed facility will provide water to customers within the city of Chino’s water service area, which includes but is not limited to The Preserve and College Park.  The City of Chino owns the approximately 13-acre property, which is located at the southeast corner of Schaefer and Campus Avenue in Ontario. This property was purchased for $572,592.”
The facility will be built in phases to match the demand for its treatment capability.
“The first phase of facilities on the property will have 3,500 gallons per minute (gpm) of treatment capacity,” Plasencia said. “The ultimate estimated treatment capacity at the property is currently planned to be 7,000 gpm. The ultimate build-out capacity of the Eastside Water Treatment Facility is intended to meet the water demand from both College Park and The Preserve.”
Plasencia added, “The ultimate build-out date and cost for the Eastside Water Treatment Facility are unknown at this time. However, the first phase of the facilities is tentatively scheduled to be operational by Summer/Fall 2015.”

(December 11)  SAN BERNARDINO—2013 is in a dead heat with 2012 in the tally of homicides in the county seat.
On December 10, police were summoned by a 12:38 a.m. call from a man driving around looking at Christmas lights who spotted a man lying just beyond the paved section of Palm Avenue on the city’s north end north of Melvin Avenue. When officers arrived, they confirmed the man was dead. It was unclear whether the victim, s 21-year-old Hispanic whose name has not been released had expired on the scene or had been transported there.
The victim, who was pronounced dead on the scene, was the third homicide in a spate of homicides since Saturday, December 7, and the 45th of the year. He had sustained multiple gunshot wounds.
Two days previous, on Sunday December 8, Thomas Wayne Scholes, 57, a transient, was found stabbed to death in another part of the north side of San Bernardino.
Scholes, who was subsisting in homeless shantytowns that are hidden from open view less than a half-mile distant from where he was found, was lying on the ground in the cemented wash area near the 2200 block of West Donald Street when he was spotted by a passerby at 7:38 a.m. About six hours earlier, there had been a barking of dogs and nearby residents heard a car door slamming shut
Police have concluded that Scholes, who was knifed multiple times in the upper torso, was not stabbed at that location and was transported there.
On Saturday December 7 at around 10:31 p.m., police on patrol heard the gunshots that felled Kameron Brandon Patterson, 18, of San Bernardino. In attempting to determine where the gunshots had emanated from, they came across Patterson lying face down on the north side of the sidewalk at Evans and E Streets at about 10:35. He had been shot multiple times in the upper torso. He was transported immediately to St. Bernardine Medical Center but died shortly after physicians began attending to him.
San Bernardino’s 45 murders as of the close of the first 344 days of 2013 on December 10 were only two fewer than the 47 homicides recorded in San Bernardino during the 366 days of 2012.
Last year’s deadly mayhem continued right up to its final minutes.  A little more than an hour before midnight on December 31, Jason Kenneth Anderson of Victorville became the last and 47th homicide victim in the city of San Bernardino in 2012 when he was gunned down at 10:50 p.m. at 677 W 28th Street. The hail of bullets that felled Anderson injured three others.
The pace of killing in San Bernardino over the last two years represented a significant uptick from 2011, when 30 people in San Bernardino died at the hands of others.
The rash of murders over last weekend and Tuesday did not match the wave of carnage that took place in the final days of April and first week of May in 2012, when, between April 28 and May 7, a period of nine days, eight people were murdered in the city. In May 2012, 12 people were murdered in San Bernardino.
Despite the deadly pattern of violence this and last year, the murder counts were and are not on a pace equal to the city’s record high of 58 killings in 2005.

(December 12)  A compromise incorporating the requests of off-road enthusiasts and the military’s need for expanded live-fire training facilities was incorporated into the final form of the National Defense Authorization Act of 2013, which was passed into law by Congress on Tuesday.
The final language of the act significantly downscales an earlier proposed expansion of the Twentynine Palms Marine Base and its Marine Corps Air Ground Combat Center, retaining much of Johnson Valley, which is home to the largest off-highway vehicle area in the United States, for recreational use.
The National Defense Authorization Act of 2013 preserves 99,870 acres of Johnson Valley as the Johnson Valley Off-Highway Vehicle Area. The deal will allow the Marines to expand the Twentynine Palms Marine Base into a portion of Johnson Valley and would end the threat of military expansion to the remaining off-road area.
The new Johnson Valley Off-Highway Vehicle Area is nearly as large as the Imperial Sand Dunes at Glamis and is explicitly designated for off-highway vehicle use under the new law. Included in this area is the entire “Hammers” area, both the front and back side. Spooners, Aftershock, Sunbonnet, the Riffle Monument, and the Cal200 Memorial (The Rockpile) are also located within the preserved off-road area. The majority of the Fry Mountains and full access to Soggy Dry Lake Bed are also guaranteed for off-highway vehicle use, as well as access to Emerson Dry Lake Bed.
This deal is the culmination of a years-long campaign to save the Hammers from base expansion. The famed “King of the Hammers” Race, which draws over 30,000 people to Johnson Valley every year, will continue under the new bill. The Bureau of Land Management estimates that Johnson Valley currently generates more than $71 million annually for local economies.
The Marines would be allowed to use a portion of the nearly 100,000 acre Johnson Valley Off-Highway Vehicle Recreation Area for a maximum of 60 days per year. It would be open to the off-road community for recreational use during the remaining 305 days.
The Marine Corps released the following statement: “The expansion of 29 Palms is the best investment the Marine Corps has made to ensure combat success and the safe return home of our Marines, as it addresses the Marine Corps’ current training and readiness shortfalls. The Marine Corps will now be able to conduct fully integrated, live-fire exercises based on current training requirements, while still preserving safe public access for Off-Highway Vehicle recreation in Johnson Valley.”
A key player in driving the compromise was Rep. Paul Cook, R-Yucca Valley, who in addition to representing the area in Congress, was a former Marine colonel who was stationed at the Twentynine Palms base. He is now a member of the House Armed Services, Veterans’ Affairs, and Foreign Affairs Committees.
Cook told the Sentinel, “My biggest concern has always been public safety. This agreement ensures public safety, while also balancing the training needs of the Marine Corps with the rights of the off-road community. It preserves California’s most important off-road recreation area for future generations. After years in which off-roaders have lived in fear of the closure of Johnson Valley, this permanently ends the threat of base expansion into off-road areas.”
San Bernardino County Supervisor James Ramos, whose Third District includes a portion of the desert affected by the legislation, stated, “This compromise reached on the Johnson Valley OHV recreational area is a well-designed plan that will protect our residents, local economy, and our recreation community while allowing the military to maintain essential training operations. I applaud Congressman Cook for his leadership in the House of Representatives, Senator Dianne Feinstein for her support, and my fellow board colleagues for standing with them on this critical issue.”
San Bernardino County Supervisor Robert Lovingood, whose First District also contains land impacted by the National Defense Authorization Act, said, “This is a victory for everyone. The Marine Corps gets land for training while preserving off-roading areas and the economic impact of the King of the Hammers event.”
Dave Cole, one of the founders of King of the Hammers, responded to the deal by saying, “While I am happy that we will be able to continue racing King of the Hammers in Johnson Valley, I am truly thankful that we have preserved the ability of future generations to enjoy this amazing area.”
Robert Lombardo, the Mayor of Yucca Valley said, “Saving a large portion of Johnson Valley not only allows for recreation to continue, but it makes it safer for the residents who would have been located so close to the proposed USMC boundary. I am excited to have the positive economic impacts of the off-road community continue, while allowing the Marines to meet their training needs.”
Mayor Dan Mintz of Twentynine Palms commented, “I’m proud that the voices of our communities were heard by our representatives in Congress, and I’m thankful that the Marines listened. We look forward to continuing our positive relationship with the Marines, while still being able to recreate safely. Off-roading has been a huge economic benefit to our city, and I’m thrilled that this deal will allow it to continue.”
Fred Wiley, the President/CEO of the Off-Road Business Association (ORBA), also weighed in on the deal, “The off-highway motorized recreation community considers this ground breaking legislation a ‘win’ for both the OHV community and the US Marines. A 5-year effort by the California Motorized Recreation Council (CMRC) has demonstrated that it is possible to share land in order to accomplish military training goals and protect motorized recreation areas. If not for Congressman Cook’s leadership, this shared-use agreement would not have been possible. As a result, Johnson Valley will soon be designated by Congress as the ‘Johnson Valley Off-Highway Vehicle Recreation Area’ managed by the Department of Interior.”
The base expansion will reach to include 88,130 acres once used exclusively for civilian off-roading. The Marines had originally coveted 168,000 acres for use in simulated battle training that would allow a target to be set upon by three contingents originating at points beyond visual range. Under the act, the Marines will be allowed to utilize 56,000 acres of land located in the Johnson Valley Off-Highway Vehicle Recreation Area for up to two months out of the year, during which time the public will be excluded from that land.

(December 11) VICTORVILLE—A San Bernardino County probation officer pepper-sprayed a 13-year-old junior high school student on December 9 while morning classes were ongoing.
The as-yet unidentified probation officer was on the campus at Hook Junior High on an unrelated matter when the school’s administrators and faculty requested assistance with a student who had become highly agitated.
The request was made of the probation officer because a school resource officer was not available.
The student, described as 5-foot-11 and 210 pounds, had been pulled out of class around 10 a.m. for an undisclosed disciplinary action. The student was not on probation or subject in any way to the probation office’s authority. After deciding to send the student home, school administrators phoned his grandmother, the student’s legal guardian, to inform her of the action being taken against her grandson and request she pick him up. She refused that request and did not answer subsequent calls made to her.
In the meantime, the situation involving the student escalated, according to school officials, involving the student punching a wall and hurling items. The sheriff’s department was summoned. Before deputies arrived, the probation officer was drawn into the matter and a confrontation with the youth ensued.
Fearing the student, who had grown confrontational, was about to become physically combative, the probation officer pepper-sprayed him. The student became enraged and verbally threatened the officer with violence, upon which he was pepper-sprayed once more.
Arriving sheriff’s deputies then handcuffed the youth and took him into custody at 10:44 a.m.  He was booked into juvenile hall on charges of felony resisting as well as obstructing and delaying a peace officer.

(December 10)  The city of Chino intends to issue $11 million worth of bonds next year to undertake infrastructure and utility improvements to facilitate further progress on Lewis Operating Corporation’s The Preserve project.
Lewis Operating Company, the successor to Lewis Homes, has an entitlement to build a total of 11,976 residential units within The Preserve Specific Plan area, which consists largely of property that was formerly a part of the Chino Agricultural Preserve. Thus far, the city of Chino has granted occupancies to approximately 1,946 completed units in that subdivision, known as The Preserve.
In anticipation of Lewis Operating Company accelerating toward its developmental goals, the Chino City Council on November 19 voted unanimously to form a sixth improvement area in a community facilities district the city formed in 2004 to assist Lewis in paying for the infrastructure and other improvements needed for residential construction to proceed. The community facilities district lies within the confines of  Kimball, Hellman, and Sultana avenues and Chino-Corona Road.
The council voted to establish a special tax area at the southwest corner of Hellman and Kimball avenues and south of Bickmore Avenue between Rincon Meadows Avenue and Mill Creek Road. The next order of business will be taken care of at a hearing scheduled for January 7, 2014 when the council will entertain issuing the $11 million in bonds to pay for the improvements. Those bonds will be debt serviced by a tax to be levied upon future homeowners within the improvement area.
The overarching district, known as Communities Facilities District 2003-3, has five previously established improvement areas. They have been utilized to issue bonds to defray the cost of constructing streets, a sewer system, curbs, gutters, a community center, a fire station, water and gas lines, street lights, landscaping, medians, parks, parkways and flood control facilities.
The city has agreed to reimburse Lewis $55,000 in out-of-pocket expenses the company bore in applying to form the new improvement area.

Clicking on the following portal will take you to the PDF version of the December 6 Sentinel

Sentinel 12-6-13

(December 6)  San Bernardino County supervisors on December 3 approved an ordinance that provides restrictions on the placement and intensity of commercial solar energy generating plants and provides a yearly fee schedule to cover the county’s costs for providing services to the facilities.
The ordinance amends the county’s previous development code relating to solar energy projects. It’s first reading Tuesday will be followed up by another vote to give it final approval on December 17. It will go into effect 30 days thereafter, effectively ending a moratorium on solar projects that has been in place since June.
Much of the impetus for the development code change and the moratorium that preceded it came from a coalition of residents in the county’s rural desert communities, who are opposed to such facilities being sited in proximity to their homes. While many of them advocated solar plants being restricted to remote desert areas, environmentalists intent on the preservation of critical habitat for wildlife such as the desert tortoise have been resistant to the concept of locating large solar plants on pristine desert grounds.
The ordinance adopted this week does not resolve that paradox, but does put in place some measure of what both sides deem to be a layer of protection for existing communities and natural resources.
“This does not fix everything, but it’s a good step in the right direction,” said Third District Supervisor James Ramos. Ramos and his board colleague First District Supervisor Robert Lovingood represent San Bernardino County’s vast desert area.
“There were many solar projects that were in the wrong places at the wrong time,” Lovingood said. “Overall, I think we are taking a balanced approach that is needed.”
The revamped development code protects natural resources, rural residential areas and tourism, said Terri Rahhal, the county’s planning director.
The regulations being put in place will ensure that solar project developers gravitate toward using land zoned for commercial and industrial use that are removed from existing residential communities; that the projects have access to existing power transmission lines and that the projects do not result in erosion, dust generation or nighttime light pollution. The new standards introduce restrictions to prevent the projects from impinging on the scenic panoramas in and around Joshua Tree National Park and other wilderness areas or interfering with operations at the Army’s Fort Irwin military reservation or Marine Corps facilities in Twentynine Palms and Johnson and Wonder Valleys.
Solar project proponents will be required to demonstrate their projects are compatible with existing and planned land uses, and will not negatively affect sensitive resources, such as scenic views, habitat, agricultural land and air quality.
Solar plants and other commercial renewable energy facilities will be restricted to land that carries  resource conservation, agricultural, floodway, rural living, rural commercial, neighborhood commercial, general commercial, service commercial, highway commercial, community industrial, regional industrial and institutional zoning designations.
Under the section titled “Required Findings for Approval of a Commercial Solar Energy Facility,” the ordinance states, “(a) In order to approve a commercial solar energy generation facility, the planning commission shall, in addition to making the findings required under Section 85.06.040(a) of the San Bernardino County Development Code, determine that the location of the proposed commercial solar energy facility is appropriate in relation to the desirability and future development of communities, neighborhoods, and rural residential uses, and will not lead to loss of the scenic desert qualities that are key to maintaining a vibrant desert tourist economy. The planning commission shall consider:
 (1) the characteristics of the commercial solar energy facility development site and its physical and environmental setting, as well as the physical layout and design of the proposed development in relation to nearby communities, neighborhoods, and rural residential uses; and
 (2) the location of other commercial solar energy generation facilities that have been constructed, approved, or applied for in the vicinity, whether within a city or unincorporated territory, or on state or federal land. (c) The finding of fact shall include the following: (1) The proposed commercial solar energy generation facility is either (A) sufficiently separated from existing communities and existing/developing rural residential areas so as to avoid adverse effects, or (B) of a sufficiently small size, provided with adequate setbacks, designed to be lower profile than otherwise permitted, and sufficiently screened from public view so as to not adversely affect the desirability and future development of communities, neighborhoods, and rural residential use. (2) Proposed fencing, walls, landscaping, and other perimeter features of the proposed commercial solar energy generation facility will minimize the visual impact of the project so as to blend with and be subordinate to the environment and character of the area where the facility is to be located. (3) The siting and design of the proposed commercial solar energy generation facility will be either: (A) unobtrusive and not detract from the natural features, open space and visual qualities of the area as viewed from communities, rural residential uses, and major roadways and highways, or (B) located in such proximity to already disturbed lands, such as electrical substations, surface mining operations, landfills, wastewater treatment facilities, etc., that it will not further detract from the natural features, open space and visual qualities of the area as viewed from communities, rural residential uses, and major roadways and highways.
 (4) The siting and design of project site access and maintenance roads  have been incorporated in the visual analysis for the project and shall minimize visibility from public view points while providing needed access to the development site.
 (5) The proposed commercial solar energy generation facility will not adversely affect the feasibility of financing infrastructure development in areas planned for infrastructure development or will be located within an area not planned for future  infrastructure development (e.g., areas outside of water agency jurisdiction).
(6) The proposed commercial solar energy generation facility will not  adversely affect to a significant degree the availability of groundwater supplies for  existing communities and existing and developing rural residential areas.
 (7) The proposed commercial solar energy generation facility will minimize site grading, excavating, and filling activities by being located on land where the existing grade does not exceed an average of five (5) percent across the developed portion of the project site, and by utilizing construction methods that minimize ground disturbance.
 (8) The proposed commercial solar energy generation facility will be located in proximity to existing electrical infrastructure, such as transmission lines, utility corridors, and roads, so that: (A) minimal ground disturbance and above ground infrastructure will be required to connect to the existing transmission grid, considering the location of the project site and the location and capacity of the transmission grid, (B) new electrical generation tie lines will be co-located on existing power poles whenever possible, and (C) existing rights-of-way and designated utility corridors will be utilized to the extent practicable.
(9) The proposed commercial solar energy generation facility will be sited so as to avoid or minimize impacts to the habitat of special status species, including threatened, endangered, or rare species, critical habitat areas as designated by the U.S. Fish and Wildlife Service, important habitat/wildlife linkages or areas of connectivity designated by county, state or federal agencies, and areas of habitat conservation plans or natural community conservation plans that discourage or preclude development. (10) Adequate provision has been made to maintain and promote native vegetation and avoid the proliferation of invasive weeds during and following construction.
(11) The proposed commercial solar energy generation facility will be located so as to avoid or mitigate impacts to significant cultural and historic resources, as well as sacred landscapes. (12) The proposed commercial solar energy generation facility will be designed in a manner that does not impede flood flows, avoids substantial modification of natural water courses, and will not result in erosion or substantially affect area water quality.
(13) The proposed commercial solar energy generation facility will not be located within a floodway designated by the Federal Emergency Management Agency (FEMA), has been evaluated for flood hazard  impacts pursuant to Chapter 82.14 of the development code, and will not result in increased flood hazards to upstream or downstream properties.
 (14) All on-site solar panels, switches, inverters, transformers, and substations shall be located at least one foot above the base flood elevation as shown on the Flood Insurance Rate Maps.
(15) For development sites proposed on or adjacent to undeveloped alluvial fans, the commercial solar energy generation facility has been designed to avoid potential channel migration zones as demonstrated by a geomorphic assessment of the risk of existing channels migrating into the proposed development footprint, resulting in erosion impacts. (16) For proposed facilities located on prime agricultural soils or land designated by the California Farmland Mapping and Monitoring Program as prime farmland, unique farmland, or farmland of statewide importance, where use of the land for agricultural purposes is feasible, the proposed commercial solar energy generation facility will not substantially affect the agricultural viability of surrounding lands.”
Contained in the ordinance is a noticing requirement that the developer advise any municipal advisory council, water agency and community services district where the project is proposed that the project is to be built. Noice must also be provided to all residents living within 1,000 feet of a proposed project’s external boundary.
The ordinance also establishes fees to be assessed annually, intended to mitigate the costs of providing public services to commercial solar energy generation facilities. Parcel sizes between zero and 4.99  acres will pay $580 per acre annually; those from five to 14.99 acres will pay $280 per acre annually; and those of 15 acres or greater will pay $157 per acre annually.
Solar project developers must obtain and maintain annually a special use permit that will entail subjecting their facilities to initial and annual code enforcement site inspections to ensure the projects are in full compliance with the ordinance.
The ordinance does not apply to rooftop solar installations. Developers can also get around the ordinance’s restrictions “There were many solar projects that were in the wrong places at the wrong time,” Lovingood said. “Overall, I think we are taking a balanced approach that is needed.” by locating their projects on state and federal land where the county does not have land-use jurisdiction. County land use services staff is developing a renewable energy element for the general plan that is to include a comprehensive map of contemplated energy development zones.  Upon completion, which is not anticipated until late 2014 or early 2015, that map will be incorporated into the ordinance.

(December 5) YUCCA VALLEY—The attempt to recall town council members George Huntington and Robert Lombardo refuses to die, nearly two months after the county registrar of voters made a determination that there were an insufficient number of valid signatures on the petitions for that effort to force a vote on whether to remove the two officials from office.
The Sentinel has learned that lead recall proponent Ron Cohen  has retained legal representation in his effort to overturn the county registrar of voter’s finding that the recall should not proceed.
Ron Cohen led a contingent of some two dozen activists intent on reform at Town Hall whose  zeal hit a critical mass after the council voted in February to increase then-town manager Mark Nuaimi’s salary and benefit package to just under $300,000 per year and extend that contract to 2016. All four of those who voted for Nuaimi’s contract extension came in for criticism, including the mayor, Merle Abel, and councilwoman Dawn Rowe, Lombardo and Huntington. Cohen and his cohorts decided to concentrate their recall efforts against Lombardo and Huntington, who had been reelected to the council without opposition in November 2012, and seek to remove Abel and Rowe when they come up for reelection in 2014.
The recall committee began gathering signatures for the Lomabardo and Huntington recalls in late April. That drive entailed door-to-door canvassing, as well as signature gathering in public areas such as in retail centers and on street corners.
In the case of both Huntington and Lombardo, the recall petitions had to be endorsed with the valid signatures of 2,461 voters residing within the town of Yucca Valley to force the recall vote. Recall proponents insist they carefully screened the signees and, in the case of Huntington, turned in petitions containing 2,712 signatures, and in the case of Lombardo 2,720.
Upon examining the petitions and the signatures, the registrar’s office initially concluded 458 signatures on the Huntington petition were invalid and 448 on the Lombardo petition were invalid. Thus, according to the registrar’s office and Yucca Valley Town Clerk Leslie Copeland, the Huntington petition contained 2,264 valid signatures and the Lombardo petition contained 2,272 valid signatures.
“Each petition needed 2,461 valid signatures to qualify for a recall election,” Copeland said in October. “Because of the insufficient number of valid signatures, the current recall process of Robert Lombardo and George Huntington is considered complete.”
Cohen, however, did not take that lying down and he approached County Registrar of Voters Michael Scarpello to demand that the processing of the petitions be double-checked. Accordingly, Cohen had sojourned from Yucca Valley to the county seat on October 11, October 15, October 16, October 17 and October 18  to carry out a thorough analysis of all of the petition signatures deemed  “unvalidated.”
Cohen told the Sentinel he had demonstrated to the registrar’s satisfaction that many of the signatures that were disqualified were in fact valid.
After the second count, which Cohen personally monitored, the registrar’s office made changes to the original tally, but that difference was insufficient to overturn the finding that the recall effort had failed. Thirty or more of the signatures on each petition  that were initially disqualified have now been certified as valid. Thus, according to the registrar, the petition targeting Huntington for recall actually had 2,294 valid signatures and the petition to recall Lombardo had 2,310 valid signatures. Both new counts are below the  2,461 valid signatures threshold needed  to trigger a recall question for the ballot.
Of the 2,722 signatures verified on the petition against Huntington, 428 were declared invalid by the registrar of voters. The registrar found 410 of the signatures out of 2,720 on the  Lombardo petition invalid.
Michael Scarpello, the San Bernardino County Registrar of Voters, said the second count was “very thorough.”
Cohen has not indicated whether he will force the issue with legal action, though his lawyer has notified town officials that he wants all documentation relating to the recall preserved.

(December 4)  The city of Upland has attempted to redress a situation in which it was alleged its city council  had violated the Brown Act.
The Ralph M. Brown Act is the state of California’s open meeting law that requires that all public business, with a few specific exceptions, must be conducted openly.
On two occasions in the last two months, the council undertook action that appeared to be in violation of the Brown Act’s provisions. The first of these occurred on October 25 when city manager Stephen Dunn provided members of the council with a questionnaire which called for them to rank municipal programs with regard to their necessity and importance to provide Dunn with guidance as to where he should pare back city operations in an attempt to balance the city’s upcoming 2014-15 budget.
In the second instance, the council selected members of its newly formed Fiscal Task Force Committee by having each member of the council simply forward his or her two allotted  nominees to the city manager outside of a public forum, without a previous public discussion or vote to ratify those nominees as actual appointees.
Ruth Musser-Lopez, who is a columnist for the Sentinel, delivered two  cease and desist letters, one dated October 30 and one dated November 12, to the city after those actions. In response, city attorney Kimberly Hall Barlow drafted two letters, each dated November 26, in which she gave Musser-Lopez assurances the council would refrain from such action in the future. The city council also scheduled a hearing at its November 25 meeting at which it officially made the committee appointments in public.  With regard to Dunn’s request that the council members fill out questionnaires, Barlow wrote, “We believe that the conduct was not a violation of the Brown Act. The Brown Act does not require all city council actions to be taken within the context of an open meeting. It only requires that, with few carefully defined exceptions, all ‘meetings’ of a city council must be open to the public. Therefore, the written submission of documents by council members to the city manger outside of a regular meeting would only violate the Brown Act if the act of submitting those documents itself constituted a meeting.”
Barlow’s letter continued, “Government code Section 54952.2 makes clear that for a ‘meeting’ to occur, there must be some discussion, deliberation, or communication among the council on a topic within the subject matter of its jurisdiction that results in the development of a collective concurrence. By individually submitting information to the city manager, no interaction among council members occurred, no deliberation took place and no consensus was reached.”
Despite that defense of the council’s action,  Barlow’s letter also stated, “In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the Upland City Council hereby unconditionally commits that it will cease, desist from and not repeat the challenged past action as described above. Rest assured that the city council takes the obligations of the Brown Act very seriously, and it is for this reason that the commitment contained in this letter is made. Even though we do not believe a violation occurred, the city  council wants to ensure that the public maintains confidence in the process through which these difficult issues will be discussed and decided.
With regard to the council’s selection of the committee members outside the forum of a public meeting, Barlow wrote Musser-Lopez another letter, also dated November 26, in which she repeated her representation that “The Brown Act does not require all city council actions to be taken within the context of an open meeting.”  Barlow propounded, “Therefore, the written submission of ad hoc budget committee appointees by council members to the city manager outside of a regular meeting would only violate the Brown Act if the act of submitting appointee names itself constituted a ‘meeting.’ By individually submitting  names of their individual appointees to the city manager, no interaction among council members occurred, no deliberations took place and no consensus was reached. To the contrary, the complete discussion and deliberation regarding the committee occurred in a duly noticed and open public meeting. In that process, it was made clear that each council member would have 2 appointees to the ad hoc committee. Any member of the public wishing to address the formation of the committee, its membership, process for appointment, etc., could have done so at the meeting of October 28th. Therefore, the appointments did not qualify as a ‘meeting’ under the Brown Act and was not required to be made during an open meeting. If post-appointment ratification of those on the committee had been required, it would have to have been done at a public meeting; however, no ratification was required by Upland ordinance or by the process expressly agreed upon at the public meeting. Thus, the committee is not illegal as you contend in your letter dated November 11, 2013 (sic). As no action was taken outside of a noticed and public meeting there is nothing to cure. Nonetheless, the full council acted to ratify the appointments at their meeting of November 25, 2013.”
Musser-Lopez, who formerly resided and was registered to vote in Upland, now divides her time between her residence in Needles and Upland, where she is a caretaker for an elderly family member. She was formerly a councilwoman in Needles.
“I had to pay money to obtain documents that included information that should have been readily accessible online in the minutes or as a part of an agendized discussion,” she said of her recent experience in Upland. “Instead, I had to go out of my way, make a special trip and expend my own personal funds to obtain information that a majority of the council had acted on. When I was on the city council in Needles, I was given instruction on the Brown Act.  There is a reason why this kind of written communication involving a majority of the council is illegal.   They are discussing and deliberating outside of the public’s view as to how they would likely vote on the budget or fiscal matters. The public can’t see or hear that discussion. In California, we voted to have open meetings, not meetings behind our backs.  When there is a majority involved in the discussion, they are not allowed to use an intermediary to communicate with each other outside the purview of the public,” she said.
“When Councilman Gino Filippi says he would like to see a discussion on ‘privatizing of city utilities’ and he does so on a piece of paper that can be viewed by his council colleagues but is not available to the public,  to me that means they are discussing selling the water utility.   The public should know that this is the direction that Mr. Filippi is interested in taking the city.  Because this polling or questionnaire was done outside of view of the public, the only reason I know that Mr. Filippi is oriented this way is because I took the time and my own money to file a Public Records Act request to obtain those filled-out questionnaires.  But the rest of the world has not seen the questionnaires.  These answers should have been made public as a part of the council packet that is prepared and published online by the city manager.  We should not be made to file a Public Records Act request.   This goes way too far in keeping information from us, information that we need to have to get an equal start on trying to fight to protect our pocketbooks and our property.”

(December 4) Some 2,220 miles across the country, a decision made in a major municipal bankruptcy case this week could have a controlling impact on how the city of San Bernardino fares in its effort to restructure its debt and reduce the generous pension benefits it committed to providing city employees as a strategy in working itself out of its bankruptcy. Generous pension provisions to its retired employees are now considered a major factor in San Bernardino’s bankruptcy.
In August 2012, after years of financial challenges, the city of San Bernardino filed for Chapter 9 bankruptcy protection. As a consequence, San Bernardino found itself at the forefront of a profound financial and public policy issue. Emerging as a significant question in that matter is whether public pension obligations are to be held as sacrosanct, no matter how generous or reasonable individual pensions are, or whether troubled municipalities can skip out on their commitments to continuously fund the retirement accounts of their current and past employees.
Public employees, their pension fund associations and their advocates maintain that under the law, municipalities and other governmental entities must honor their payment schedules for contributions toward pension funding, no matter the governmental entity’s state of solvency or if it is seeking bankruptcy reorganization.
The relatively few California cities that have found themselves in the position of having to declare bankruptcy have shied away from testing whether, in fact, employee pension funds enjoy a specialized status vis-à-vis claiming to be first in the line of creditors to be paid by a governmental entity that is struggling financially.
In California, San Bernardino is one of three cities with populations of over 100,000 which have sought bankruptcy protection. The other two, Vallejo and Stockton, have elected to continue to stay current on their pension fund obligations. San Bernardino, however, has taken the position that pension payments should not be  excluded from the list of debts it wants to reduce, and that the California Public Employee Retirement System, known as CalPERS, should accept for the time being a pendency plan that reduces the payments it will receive from the city in the same ratios that the city is reducing its payments to its other creditors, including its bondholders and suppliers of goods and services,  until such time as the city is able to regain its financial footing. San Bernardino, which currently has a $25 million annual obligation to the retirement system, withheld more than $14 million  in pension fund payments from July 2012 until July of this year. The city wants to continue to make partial payments until such time as it gets back on its feet financially. Even more alarming to CalPERS is the perception that the city is looking down the road at a longer-term solution that would include renegotiating the amount of its commitment to the retirement system, one that would indeed set a precedent in California of reducing the pensions of retired or soon-to-retire city employees.
CalPERS opposed San Bernardino’s bankruptcy petition, asserting that the pension fund system has a special status.
Moreover, CalPERS has, disputed since shortly after the municipality’s filing of its August 2, 2012 bankruptcy petition, San Bernardino’s contention that it is in dire fiscal straits. The pension system maintains that San Bernardino has hundreds of millions of dollars worth of assets that can be tapped into or liquidated to satisfy its many creditors. CalPERS asserts San Bernardino is simply skipping out on its financial responsibility and is not eligible for bankruptcy.
U.S. Bankruptcy Judge Meredith Jury, who is overseeing the city of San Bernardino’s Chapter 9 bankruptcy filing, has consistently ruled that San Bernardino is as insolvent as it claims. In August, she ruled that the city’s bankruptcy should be granted pursuant to a pendency plan by which the city continues to pay its employees and other expenses critical to its day-to-day operations but services its other debts on the basis of the limited financial means available to it.
CalPERS wants out of Jury’s courtroom and is pressing for leave to appeal the matter to another judge, a request Jury has already denied.
This week, CalPERS has been forced to contemplate the consideration that other bankruptcy judges may prove every bit as, if not even more, accommodating of the city’s requests to back away from its pension commitments to current and former employees.
U.S. Bankruptcy Judge Steven Rhodes is hearing the city of Detroit’s bankruptcy case. Detroit, the largest U.S. city to ever declare bankruptcy, is beset with an estimated debt – $18 billion – that makes San Bernardino, with its $180 million in ongoing unfunded liabilities and $49 million annual operating deficit, by comparison seem as if it is almost flush with cash.  On December 3, Rhodes ruled that Detroit is not only eligible for bankruptcy but can also cut pension benefits as part of its strategy to map its way out of the financial abyss it has found itself in. Pensions, just like any other contracts, can be altered, given the exigency of bankruptcy, Rhodes ruled.
Rhodes’ ruling provides a precedent that outfits San Bernardino with more leverage in its match with CalPERS, providing the city with the potential option of abrogating a contract that CalPERS and the city’s municipal employee’s unions considered sacrosanct, unbreakable, and absolutely ironclad.
CalPERS’ position appears to be eroding by the minute. The pension system has maintained that it has special status among the city’s creditors and that it should go to the front of the line when the city begins to pay those to whom it is in arrears. Jury did not accept that, ruling that CalPERS has no greater or lesser standing than the scores of other entities the city owes money to.
In the cases of two other cities in California that have sought bankruptcy protection, Stockton and Vallejo, those cities have chosen to stay current on their obligations to CalPERS. However, in the Stockton case, the federal bankruptcy judge hearing the matter, Christopher Klein, granted Stockton’s request to set aside the city’s health benefit debts. And while he ratified the plan to make good on the city’s obligation to CalPERS, Klein indicated that had the city requested the authority to modify its pensions, he would have gone along with the request.
With Rhodes’ ruling in the Detroit matter, financially troubled cities may now be emboldened to do battle with the managers of their employees’ pension funds.
And while CalPERS maintains that municipal retirees are due all retirement moneys they qualify to receive under current formulas since those pensions represent  “promises made in exchange for the financial and physical investments that public employees and retirees make in our communities,” others see the matter somewhat differently. Many retirees are availing themselves of pensions utilizing a formula based not upon a percentage of their maximum salaries as municipal employees but a percentage of their salaries plus vacation pay, overtime pay, vehicle allowances, educational allowances, travel allowances, computer and cell phone allowances, clothing allowances and other stipends.  In recent years, there have been several highly publicized cases of pension spiking, including examples of high ranking public employees who, while employed earned salaries in the $200,000 per year range but by adding on various addenda to their salaries and other forms of compensation for their retirement calculations, are now receiving yearly pensions approaching $300,000.
Unexplored in the bankruptcy proceedings so far is an examination of the tactics used by employees and their unions to extract from elected city officials generous salary and benefit packages, including concerted efforts to elect or reelect politicians willing to provide them with those budget-busting salaries and benefits and chase from office those elected officials unwilling to break the city treasury to accommodate the unions.
Upon the demonstration that such tactics were used by unions to strong-arm elected leaders into providing their members with generous retirement benefits, a judge who is requested to grant pension modifications might seriously entertain such a remedy under the principle of the “balancing of hardships” whereby a city in a state of financial duress beset upon by a multitude of creditors, all of which could not be fully satisfied by that city’s available financial means, would appear to have grounds to seek to reduce pensions deemed to be excessive.