(November 15)  The cities of Upland and Montclair should achieve an initial $260,000 combined annual savings by merging the administrative functions of their current fire departments, Montclair City Manager Ed Stark told the Sentinel this week.
That consolidation is to be considered by the Montclair City Council at its December 2 meeting. If ratified by both city councils, the merger could take place as early as January. A previously contemplated accompanying dissolution of the service boundaries between the two agencies will be postponed until July 1, Stark said.
There is marked enthusiasm for the limited merger of the two departments among the managerial ranks of both cities. The one potential roadblock appears to be possible reluctance in Upland at the political level, where one city councilman has said he wants further figures and assurance that the change will represent cost savings to his city.
The finalized proposal that has taken shape for the partial merger of the fire departments entails current Upland Fire Chief Rick Mayhew becoming fire chief of both departments, with the departments sharing three battalion chiefs as well as a fire marshal. Each city will retain a deputy fire chief that will not be part of the command sharing.
While each department will maintain its own identity and retain responsibility for its own firefighters, who will work under different employee contracts with their respective cities, the arrangement will pave the way for future consolidations, including the planned eventual dropping of the fire service boundaries between the two cities and use of a common dispatch team.
“Initially we are going to ask the council to approve command staff sharing and to delay the boundary drop for six months while we carry out studies with regard to fully merging our respective cities’ service areas,” Starr told the Sentinel. “At the end of those studies, effective July 1, 2014, we will very likely eliminate our common service boundary. This is a two-year proposal about which all of our [Montclair] council members appear to be supportive.”
One element of the study to be carried out over the next several months pertains to further consolidation, Starr said, of “non-sworn positions in both departments to determine which of those will be subject to cost sharing. At the end of six months. by July 2014, we will decide if sharing costs for various non-firefighting positions in our departments should take place.”
Both cities stand to save money in the arrangement, Starr said. “My understanding is the savings for Upland are in the $160,000 to $180,000 range,” Starr said. “That is not an exact or hard figure, but just based on my conversation with Upland officials. Upland personnel need to complete their calculation to fully determine what their cost savings will be. This could have a significant economic advantage for them beyond the figure I quoted. This could well impact on their overtime costs. In Montclair, we are projecting $120,000 savings in overtime costs. There may be savings we have not fully calculated.”
Starr said the gist of the savings will consist of the economy of scale realized with the elimination of costs netted with the consolidation of the battalion chief function. Upland will see further savings in that Montclair will “pay a share of the Upland fire chief’s salary.” Moreover, he said, Montclair will “initially pay for two of the three battalion chiefs.”
The advantage to both cities will not entirely be economic, Starr said. “Each city will have access to expanded resources. From our perspective, it is a good deal. For Upland, it will not provide them with the half million dollars in savings they are looking for in dealing with their budget issues, but it will represent at least $160,000 in cost reductions. And they will reap improved fire protection.”
An earlier envisioned benefit to the merger, Starr said, was that “the response to a call was to be based on the closest fire station. If a call from Montclair came in where the closest station was in Upland, then they would have responded first, just as if in a case where Montclair has a closer station to an ongoing incident in Upland, we would respond first. With what we are proposing now, we will not be eliminating our service boundaries until July.”
Nevertheless, Starr said, rapid response across those lines of demarcation will take place as is appropriate and as emergency and necessity dictates. “We already have mutual aid and automatic aid agreements, so a Montclair engine might roll on an Upland fire or emergency now, if the Montclair station is the closest. The call would go through Upland first, but if the Upland truck is busy, a call will go to Montclair and we would respond.”
At present the city of Upland, with its population of 73,732, employs 36 full time firefighters staged out of four fire stations. Montclair fields 24 firefighters and operates out of two fire stations.  Previously, the city of Upland contemplated outsourcing options for its fire department in an effort to reduce costs, including considering contracting with the city of Ontario, the California Division of Forestry or the county of San Bernardino for fire protection service. Upland also approached Los Angeles County to see if its fire department would provide it with a fire service proposal. Los Angeles County turned Upland down because the California Division of Forestry, also known as Cal Fire, and LA County Fire have an agreement that Cal Fire will not come into Los Angeles County to seek contracts and Los Angeles County has agreed not to go into San Bernardino County or Orange County for contract agencies.
In Montclair, officials previously gave serious consideration to the outsourcing of that 36,664-poulation municipality’s fire department, specifically the concept of dissolving the department in favor of contracting with the San Bernardino County Fire Department or the California Department of Forestry and Fire Protection.
The impetus for the exploration of those options were financial considerations, brought on by the downturn of the economy, dwindling governmental revenue and the conflation of governmental services. As a result of the state of California’s shuttering of municipal redevelopment agencies throughout the state, toward the end of the 2010-11 fiscal year, Montclair laid off 10 employees as part of its effort to make up for its loss of redevelopment money. Throughout much of 2010-11, one of the Montclair Fire Department’s paramedic units was parked and the paramedics functioned from the department’s remaining engines, which stayed in service. Over the last year-and-a-half, what was a 27-firefighter department has lost three positions to attrition, and has not filled those vacancies, making up for the manpower shortage with overtime. In September 2012, Starr, in a cost-cutting move that saved the city nearly half a million dollars a year in wages and benefits, elevated police chief Keith Jones to the position of director of public safety and gave fire chief Troy Ament his two-week severance notice. In June of this year, police captain Michael deMoet was appointed to the position of director of public safety, following Jones’ retirement.  de Moet continues to function in the role of Montclair fire chief.
If the administrative merger is approved and provides the projected savings in both cities and the boundary dissolution takes place next July as anticipated, the next logical step for both cities would be the merger of its public safety dispatch function, which would provide monetary savings as well.
At present, both Upland and Montclair contract with the city of Ontario, which has a regional emergency dispatch and communications center that previously set the standard in that arena for nearly three decades. But the county of San Bernardino has recently significantly upgraded its computer-aided dispatch system, giving it capability that rivals or exceeds that of Ontario.
According to Starr, “We have not entered into an agreement with Upland on consolidated dispatch, but it is an item of discussion. At this point, we have to rely on the current dispatch arrangement that treats Upland and Montclair as individual and separate agencies. If we are to consolidate our dispatch functions, we could stay with the city of Ontario or go to the county of San Bernardino. Whatever agency we go with would have the ability to treat Upland and Montclair as one entity and dispatch the unit closest to the incident. The first part of our study needs to be completed. My understanding at this time is there would be an opportunity for economic saving if the two of us went together as one entity. We haven’t actually approached the city of Ontario with that question yet. We have approached the county in that regard. The county has a different and more recent addition of technology for its dispatch capability. If it is appropriate, the two cities may want to avail themselves of the economic advantage consolidation would bring and we may want to take advantage of the updated technology the county can now offer at the same time. It may also be to our advantage to stay with Ontario.”

(November 15)  Patrick Petre, whose tenure as the top administrator of the county hospital was marred by accusations of irregularities in the running of the facility over the last several years, is leaving his position at the hospital today. His resignation was announced November 11.
Known as Arrowhead Regional Medical Center, the county hospital made several strides during Petre’s time as director, which began in 2007. Those included an 83 medical/surgical bed expansion on the sixth floor and the addition of a three-story, 68,000-square-foot medical office building. Petre was also on hand when the medical center was designated as a stroke center and incorporated a palliative care program and an enhanced cancer care program.
By February 2010 and perhaps earlier, however, California state and federal investigators began looking into alleged irregularities at the institution, including faulty diagnoses that led to the deaths or permanent injuries of patients; billing fraud with regard to descriptions of services rendered; a fiduciary conflict of interest in which the hospital’s former medical director, Dr. Dev GnanaDev, owned the medical corporation, Arrowhead Regional Surgical Group, Inc., which had an exclusive contract for the provision of certain surgical procedures at the hospital; the hospital’s alleged free provision of off-the-books medical care to individuals, including members of the board of supervisors and high ranking county officials; inadequate supervision and oversight of the emergency room; violations of law with regard to the use of physical restraints on patients in the hospital’s behavioral health ward; together with inadequate peer review of the hospital’s policies and practices.
The county initiated the first of a series of internal audits shortly after the state and federal probes were revealed as being under way.
In May 2010, the Centers for Medicare and Medicaid Services threatened to suspend Medicare and Medi-Cal payments to  Arrowhead Regional Medical Center if the county hospital did not show improvement in operations and patient care.
On November 4, 2010  a team of more than 20 investigators, including FBI agents, members of the U.S. Attorney’s office and district attorney’s office employees, served search warrants at Arrowhead Regional Medical Center, hauling away thousands of documents and computer files. No criminal charges were ever filed, but the county’s internal examinations of its operations intensified.
Last January, GnanaDev, who had been the hospital’s medical director since 2000 and had come under continuous criticism because of the perceptions of the conflict involving his dual roles as the hospital’s medical director and as owner and head of the surgery group with a hospital contract, departed as medical director and was replaced by Dr. Emily Ebert, who has served the last eight months as the acting medical director of the county hospital.
Doctors and other medical professionals who work at the hospital reported that Petre was unwilling or unable to assert his overarching management authority at the hospital to hold GnanaDev in check, and had shrunk from providing recommendations to the board of supervisors that would have curtailed GnanaDev’s domination of hospital operations and the promotion of his surgical group’s financial interests, even in the face of indications this created a circumstance that was contrary to the interests of some of the hospital’s patients.  Petre’s reluctance could be at least partially explicated by the consideration that some of the members of the board of supervisors had been the recipients of the off-the-books care rendered at the hospital.
In September, Dr. Richard Pitts succeeded Ebert as Arrowhead Regional’s medical director.
Petre reportedly was offered a management post with a private sector medical provider in Los Angeles County, and will move into that position shortly.
Petre will be temporarily replaced by Pitts while a nationwide search is conducted to replace him.

(November 14)  Whether a landmark political corruption case against Rancho Cucamonga developer Jeff Burum and three former San Bernardino County political figures will proceed to trial now hinges on the California Supreme Court’s determination of a highly arcane legal issue. More than a week after hearing oral arguments, the state’s highest court is now engaged in determining whether the circumstances in the case are sufficiently different from several decades-old bribery cases to override legal precedents that disallow a defendant who has allegedly offered a bribe to a public official from being charged with abetting the alleged recipient in having received the bribe.
In February 2010, a grand jury indicted former county supervisor/county assessor Bill Postmus and one of his political associates, Jim Erwin, who had been the head of the county sheriff’s deputies union before he was appointed by Postmus to serve as assistant assessor. Five others were identified as unnamed co-conspirators in that indictment, which charged Postmus with a host of crimes, including conspiracy, soliciting bribes, accepting bribes, perjury, filing falsified documents and other violations of the public trust. The charges were filed in connection with his November 2006 vote, while he was still chairman of the county board of supervisors, to approve a $102 million legal settlement between the county and the Colonies Partners, which was controlled and managed by Burum and Dan Richards.
Erwin, who had been instrumental in vectoring monetary support from the sheriff’s deputies’ union to Postmus’s supervisorial and assessor campaigns and was subsequently appointed to one of two assistant assessor positions Postmus established after his election as assessor, was charged with conspiracy, extortion and bribery, perjury, filing falsified public documents and tax evasion. Prosecutors alleged that Erwin, who was working as a consultant for the Colonies Partners in 2006, threatened to disclose damaging information relating to both Postmus and his then-board colleague Paul Biane before Postmus, Biane and a third member of the board, Gary Ovitt, voted to approve the $102 million settlement of the lawsuit the Colonies Partners had brought against the county over flood control issues at the company’s Colonies at San Antonio residential and Colonies Crossroads commercial projects in northeast Upland. After the settlement was approved in November 2006, according to prosecutors, Burum rewarded Postmus, Biane, Erwin and Ovitt’s chief of staff, Mark Kirk, with $100,000 each in contributions to political action committees they controlled.
Initially Postmus and Erwin both pleaded not guilty to those charges. But in March 2011, Postmus pleaded guilty to all fourteen counts contained in the indictment against him along with one other unrelated drug possession count and agreed to turn state’s evidence. He was the star witness before a newly-impaneled grand jury that heard evidence in April 2011. In May 2011, that grand jury handed down a superseding indictment that collectively charged Erwin, Burum, Biane and Kirk with conspiracy relating to the alleged bribery scheme. Erwin was hammered with multiple counts, including receiving a bribe, acting as Burum’s agent, perjury, filing falsified documents and tax evasion. Biane was charged with soliciting and receiving a bribe in exchange for his vote. Kirk was charged with receiving a bribe in exchange for influencing his boss, Ovitt, to vote to approve the settlement. Burum was charged with extorting Postmus and Biane but was not charged with bribery. Rather, prosecutors fashioned charges against him that alleged aiding and abetting Postmus, Biane and Kirk in receiving bribes. The defendants were also charged with conflict-of-interest and misappropriating public funds. No substantive counts of extortion were charged in the superseding indictment and the extortion counts against Erwin in the February 2010 indictment were dispensed with, although extortion allegations were wrapped into the broad conspiracy count contained in the May 2011 indictment.
Defense attorneys filed demurrers on behalf of their clients, motions which called into question the legal sufficiency of the charges against the defendants. Cited in those demurrers were the cases of People v. Davis, People vs. Clapp and People vs Wolden, all of which bore upon the inability of prosecutors to charge a defendant with conspiracy or aiding and abetting a crime when that individual stands accused of a crime that necessarily involves the involvement of another individual.
In the case of People v. Davis, the court ruled that “the giver and receiver of a bribe are no longer accomplices one to the other.”
The Clapp case, from 1944, pertained to three women accused of involvement in an abortion, which at that time was illegal, and the conviction of the woman on whom the abortion was performed. The court held the woman submitting to an abortion was not punishable as a principal under one section of the penal code because her conduct was prohibited under another section. As such she was deemed not to be an accomplice in the crime of the other parties.
The case of People v. Wolden, which in itself relied upon the precedent of the Clapp Case, related to the case of Russell Wolden, the one-time assessor of San Francisco County who was indicted on 10 counts of accepting bribes and one count of conspiracy to accept bribes. One bribery count was dismissed and the jury failed to reach a verdict upon another and found him guilty of the conspiracy charge and eight counts of accepting bribes. Upon appeal, it was determined that the giver and receiver of a bribe are not guilty of a conspiracy, because the two crimes require different motives or purposes and that the giver of the bribe is not an accomplice in the “separate and distinct crime” of bribe taking.
In August 2011, Judge Brian McCarville granted several of the defendants’ demurrers in what has become known as the Colonies Lawsuit Settlement Public Corruption Prosecution, ruling that a defendant such as Burum who was essentially accused of giving bribes cannot also be charged with aiding and abetting the receipt of bribes, and he dismissed all four bribery counts and one of misappropriation of public funds against Burum, leaving only two of the original seven charges against the figure at the center of the case intact. McCarville further dismissed one felony count of misappropriation of public funds for each of the other defendants. The prosecution, consisting of both the California Attorney General’s office and the San Bernardino County District Attorney’s office, appealed McCarville’s ruling to the Fourth District Court of Appeal in Riverside, which in October 2012 upheld McCarville with regard to the four bribery counts against Burum that had been tossed, and also threw out a conflict-of-interest count McCarville had let stand. The appeals court did, however, reinstate the misappropriation of public funds charge against Burum that McCarville had dismissed.
Prosecutors then made a last-minute appeal of the Fourth District’s ruling to the California Supreme Court on December 10, 2012. Led by Deputy California Attorney General Melissa Mandel, the prosecution’s petition maintains that California bribery law is stale and dated, having not kept pace with changes with regard to bribery and other public officer crimes in other states as well as at the federal level and is inconsistent with other related court decisions. Moreover, according to prosecutors, the circumstances in the Colonies Lawsuit Settlement Public Corruption Prosecution are not limited to a simple one-to-one relationship between the offerer of a bribe and the receiver, but involve agents acting on behalf of Burum, and thus, Davis, Clapp and Wolden are inapplicable.
On November 5, Mandel, representing the prosecution, and Stephen Larson, a former federal judge who is representing Burum, made oral arguments of their respective positions before the State Supreme Court in Sacramento.
Larson, in his presentation and answers to the justices’ questions, reiterated his previous assertions in court documents that the prosecution is engaged in an impermissible charging scheme and that it was engaging in an elaborate stretching of the law in seeking to overcome having failed to charge his client with giving or offering bribes before the expiration of the statute of limitations.
Having failed to bring timely charges against Burum, Larson wrote in his answering brief to Mandel’s argument filed with the state Supreme Court, the prosecution is now seeking to eviscerate the law and the longstanding interpretation of it.
“The people ask this court to overturn over a century of precedent precluding their improper attempt to charge Mr. Burum, the alleged bribe-giver, under derivative theories of liability for the crime of receiving bribes,” Larson wrote. Just as the prosecution had failed to act in time to properly charge Burum with bribery, it also blew the statute on the extortion and blackmail elements it has attempted to weave into the case, Larson said.  What the prosecution is asking for, Larson said, amounted to a “do over” of its inadequate original filing. As such, Larson maintains, it is asking the California Supreme Court to make a contrary interpretation of its own case law pertaining to the inability to charge a bribe giver with aiding and abetting the bribe taker in receiving the bribe. Larson pointed out that there were no secondary acts alleged against Burum in the original indictment and that even if the court were to reverse more than 90 years of standing case law, the applicability of that interpretation to Burum at this point would amount to an improper ex post facto prosecution, i.e., the retroactive application of a law to action prior to the law being in effect, which is expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3.
Mandel, faced with the task of convincing the Supreme Court that existing statutes and case law are unequal to the circumstances and actions alleged in the indictment, found herself faced with questions from the justices indicating at least a modicum of skepticism with regard to her novel legal theories. She attempted to blend together the overt acts alleged in the indictment with the action of Erwin, who was described in the indictment as Burum’s “agent,” “mule” and “underling,” to propound the theory that his action in having prepared, prior to the 2006 election, never-delivered mailers and handbills which dwelled on derogatory information relating to Postmus and Biane, constituted blackmail and extortion that paved the way for the bribes that were delivered to Postmus and Biane after the vote conferring the $102 million settlement on the Colonies Partners. The combination of the bribes, extortion, blackmail and the use of a third party, i.e., Erwin, in this regard, Mandel suggested, constituted a facilitation of the crime that went beyond mere bribery. Burum, she said, utilized his “enormous political power and financial resources to coerce the public officials into accepting his bribes.”
To questions from the justices as to whether the prosecution had allowed the statute of limitations on the bribery – which allegedly occurred between February 2007 and June 2007 – to elapse by the time of the May 2011 indictment of Burum, Mandel did not provide a direct answer.
Present during the oral arguments before the Supreme Court but not taking part were deputy district attorneys Lewis Cope, Reza Sedeghi and John Goritz, all of whom work in the office’s public integrity division, as well as former deputy California Attorney General Gary Schons, who previously oversaw the case and supervised Mandel when the case was filed.
While Mandel maintains the matter is a “high-profile public corruption case that is being closely watched and will be used as a benchmark to inform the conduct of both public officials and those seeking to influence them” and is “the right case” for the Supreme Court to make a precedent-setting decision with regard to bribery of public officials and thereby “offer guidance on … what acts they can commit without subjecting themselves to prosecution,” Larson argued that it was a misapplication of the law to try to hold Burum accountable for the other defendants’ violations of Government Code Section 1090 and 1097, which prohibit an elected official from engaging in a financial conflict-of-interest or making a decision which will have an impact on his own financial circumstance. He said the Davis, Clapp and Wolden precedents have been for so long established that they have become standards under California jurisprudence. He said the Court of Appeal had engaged in sound analysis of the criminal case and made accurate rulings. “The Court of Appeal correctly held that Mr. Burum cannot be charged with aiding and abetting or conspiring in the alleged violation of Government Code Section 1090. Government Code Sections 1090 and 1097 do not apply to private citizens,” according to Larson. “The Court of Appeal properly based its ruling on the legislative intent to exclude aiding and abetting liability.”

(November 15)  MORONGO BASIN — A self-styled committee devoted to evaluating options and guidelines for the development of renewable energy in the middle and eastern Mojave Desert that has been adopted by Third 3rd District San Bernardino County Supervisor James Ramos’ as an advisory panel is recommending that wind and solar fields be built in areas of the desert that have already been developed.
In June, the county board of supervisors passed a 45-day moratorium on commercial solar projects in the county’s unincorporated areas. On July 23 the board approved a 10-month extension of the ban on new commercial solar projects to allow county staff to refine its regulations with respect to solar fields.
A Catch-22 situation has developed with regard to renewable energy projects, which, according to one school of environmentalists, represent an ecological advance over traditional conventional power sources, such as fossil fuels. Other environmentalists decry the ecological havoc and visual blight on the natural landscape massive solar power or wind power projects impose, including their disturbance or destruction of the habitat of certain species. They want to prevent any future renewable energy projects from being located in pristine or undisturbed areas.
But county residents living in proximity to where several solar projects have been approved or are proposed have complained the solar farms are a too-intensive use that clashes with the nature of their rural residential neighborhoods and represent unresolved land-use and zoning conflicts. Thus, the places where large solar or wind projects can be located anywhere in San Bernardino County’s vast desert outback without triggering some level of protest are virtually non-existent.
In the Route 62 Corridor, stretching from Morongo Valley to Twentyine Palms, in the communities of Morongo Valley, Yucca Valley, Joshua Tree, and Twentynine Palms, as well as in other remote desert areas such as Pioneer Town, Landers,  Black Lava Butte & Flat Top Mesa, residents have proven resistant to solar and wind farms being built in their environs.
Nevertheless, members of the Basin Energy Assessment Team, the aforementioned group of residents recently embraced by Supervisor Ramos as sapient guides with regard to the county’s forthcoming renewable energy development policy, are prodding county and local officials to adopt codes that would restrict  energy development to those portions of the desert environment that have already been developed or which are inhabited.
At its most recent meeting on November 1, the Basin Energy Assessment Team, which now boasts more than a dozen members, voiced the perspective that solar and wind projects should be placed in industrially zoned areas and should incorporate pre-existing infrastructure and structures as part of their projects to the extent possible.
On a very real level, the group’s advocacy runs counter to the flow of things at both the federal and state levels, where renewable energy development is being encouraged. The state of California is pushing for the streamlining of the permitting of renewable energy projects and meeting its own  Renewable Portfolio Standard, the provisions of Senate Bill 11-2X, signed into law by Governor Edmund Brown, Jr. on April 12, 2011, as Public Resources Code § 25740, requiring California to meet the 33 percent renewable energy portfolio standard by 2020 and the Desert Renewable Energy Conservation Plan, which calls for the approval of  10,000 megawatts of non-hydropower renewable energy generation on public lands by 2015. In the face of this, the Basin Energy Assessment Team is calling for a far less aggressive development of renewable energy.
A case in point is the online brief the group has put together called the Desert Renewable Energy Conservation Resources. On that site, the group advocates the use of solar panels and solar film on existing structures as the most efficacious way of exploiting solar power, rather than building solar fields. On that site, the group says that it offers “a library of analytical writings that demonstrate the economic and conservation benefits of point-of-use renewable energy generation in the already built environment. Point-of-use installation is the cleanest and least expensive way to ramp up renewable energy generation immediately, all while creating the highest number of local jobs, preserving and improving property values, protecting local water resources, and boosting the local economy.’’
Basin Energy Assessment Team members are attempting to steer Ramos, and by extension the entire county, into adopting policies that will attenuate the more aggressive elements of the Desert Renewable Energy Conservation Plan and will impose strict water use regulations on solar projects, prohibit solar projects that would have a deleterious impact on the area’s tourism industry  and place restrictions on projects that would hurt the environment, scenic views, wildlife and natural resources.
While many desert residents hail the moratorium and the cautious approach Ramos, the board of supervisors and the county’s land use services division are taking with regard to the consideration of solar and wind projects, solar project proponents say the county is losing a vast economic opportunity by kowtowing to the opponents of large scale solar and wind projects.
Scott Mazzola, vice president of Apple Valley-based Desert Solar, said that while the county and its land use services division dither over the zoning issues and standards to be applied to solar fields, individuals, companies, corporations and investors interested in pursuing solar development are growing impatient, losing money, contemplating taking their proposals elsewhere or have already pulled up stakes and moved outside of the county.
Noting that Desert Solar long ago committed heavily toward the concept of establishing medium and large scale solar projects throughout the Mojave Desert and that “We’ve spent several years investing time, resources, money to make these projects work,” Mazzola complained the moratorium and its extension has now upset his company’s timetable and cost it a considerable amount of money as well as projected future revenue.
“By extending this out as long as you have, you have really… devastated us,” he told county land use services staff  at a county workshop two months ago. That workshop was hosted by the land use services division to gather input from residents with regard to the guidelines they want instituted in the county code relating to solar projects.
Mazzola said Desert Solar had been forced to abandon its San Bernardino County projects in favor of seeking approval in other Southern California jurisdictions where there is less uncertainty as to the standards and restrictions his company will encounter. “We have literally moved two $70 million projects from San Bernardino County to other locations,” he said.

(November 15)  APPLE VALLEY –The town of Apple Valley will hold a referendum next Tuesday on Wal•Mart’s proposal to put in one of its superstores at the corner of Dale Evans Parkway and Thunderbird Road.
A yes vote on Measure D will give go-ahead to the project, resulting in the shuttering of Wal•Mart’s existing store on Highway 18.
Mail ballots have already gone out to Apple Valley voters. Polls will open at 7 a.m. on Nov. 19.
After a vocal opposition to the new store formed, Wal•Mart sponsored the formation of a committee to stump for the new project’s approval, known as Apple Valley Consumers for Choice, in late 2010. City officials, who believe the new store will boost the city’s sales tax receipts, are supporting Measure D. They have been able to sustain a brisk campaign designed to convince town residents the new store will be advantageous to the community largely on the strength of $715,000 provided to the committee by the Wal•Mart Corporation since February 2011.
The committee, and Wal•Mart, working through the law firm of Bell, McAndrews & Hiltachk have put up $50,000 toward defraying the town’s costs for holding the election.
Wal•Mart and its supporters are intent on holding the election – despite its costs – because voter approval may prove key to the development proposal reaching fruition. The project runs counter to the town’s current general plan and it will border a residential area. As such, it would be potentially vulnerable to a lawsuit that would contest its presence as being incompatible with nearby uses.
An attorney with offices in Upland and San Diego, Corey Briggs, has had considerable success in stymieing or delaying Wal•Mart projects in a number of Southern California cities, challenging them both on environmental grounds relating to the California Environmental Quality Act as well as their inconsistencies with several of those cities’ general plans.
Briggs made a showing in Apple Valley more than two years ago when he contested the town’s tentative approval of the Supercenter.
Nevertheless, the opposition to the new Apple Valley Wal•Mart, while significant in terms of numbers, its vociferousness and dedication, lags well behind the project proponents and its supporters in terms of marshaling monetary and political support.
The committee that was organized to oppose the Apple Valley Wal•Mart Supercenter, Citizens for Smart Growth, did not register with the California Secretary of State until September. The group has less than $1,000 in its coffers, meaning it can put out very little in the way of mailers or ads in opposition to Measure D.
Wal•Mart, working through Apple Valley Consumers for Choice, collected more than the 5,700 signatures to qualify Measure D for the ballot, an indicator that opponents may have a tough row to hoe in stopping the project.

Download the November 8 Edition of the Sentinel by clicking on the following portal:

Sentinel 11-08-13

(November 8) Nearly 26 years after he stormed into office as San Bernardino city attorney, James Penman was removed from office by close to a three-fifths margin of voters in a special recall election on November 5.
For more than two-and-a-half decades Penman played a significant role in city politics, one that went beyond the traditional place of the city’s legal advisor. And while his self-enlarged demeanor  on occasion boosted him into a position rivaling the power of several of the mayors he served with at City Hall, his political involvement played a role in his being vanquished this week, as the city he guided was buffeted by financial problems that led it to file for bankruptcy last year.
When several of the city’s largest creditors challenged the legitimacy of the city’s bankruptcy filing, Penman’s role as the city’s defender in federal bankruptcy court compounded the impression that he was co-responsible for the city’s fiscal plight.
Formerly a Democrat who once bragged  about heading Students for Kennedy at Cal State San Bernardino, Penman created a handful of lifelong enemies among the Democrats he crossed swords with over the years and he eventually ended his affiliation with the party, declining to state his political preference on his voter registration document. He gravitated toward affiliations with Republicans both at the city and county level. Nevertheless, his  long term incumbency resulted in political support from the normally Democrat-aligned municipal employee unions, which occasionally alienated a portion of the Republican base he was striving to cultivate. And his political ambition at times put him into contests, electoral and otherwise, against members of the GOP.
These accumulated liabilities and his often acerbic personality, combined with the determination and money of the group that sponsored the recall effort, led to his ouster.
In 1987 Penmen defeated incumbent city attorney Ralph Prince, a Democrat, whose 28-year reign in that office was the longest in the city’s history. Seven years later Penman ran for district attorney, utilizing support from the county’s Old Guard Republican power base, which included then-incumbent DA Dennis Kottmeier, who elected not to run in the face of a challenge by one of his own prosecutors, Dennis Stout, a Republican who was then Rancho Cucamonga’s mayor. In that 1994 contest, Stout outgunned Penman, whose campaign was marred by accusations from the Stout camp that as San Bernardino city attorney, Penman had been a little too forward with San Bernardino’s female employees.
Despite his failure to advance to the county’s top prosecutorial spot, Penman consistently was reelected as city attorney in the county seat, where over the years better than a half dozen appointed and elected officials were arrested, charged, and convicted of violations of the public trust and/or political corruption, or were otherwise removed from office. Penman would take credit for many of these. At the same time that he was aligning himself with Republican elected officials in the city, he  associated with the unions or bargaining units representing the city’s public safety employees, i.e., police officers and firefighters. Over time, these associations grew to include one with the union representing the city’s general employees as well. His support of generous salary and benefit packages for municipal employees ran counter to the fiscal conservatism  advocated by the Republican Party, a circumstance that initially did not harm him politically as hefty donations from those unions assisted him in his reelection efforts. But as city finances grew ever more tenuous, his support of the groups increasingly viewed as being at the root of the city’s slide toward bankruptcy took their toll.
Moreover, in the early 2000s, Penman initiated challenges of then-mayor Judith Valles, a Democrat, leading to more contretemps. In 2005, Penman sought the mayoralty himself, running against former Superior Court Judge Patrick Morris, a Democrat. That bid failed, as did a rematch against Morris in 2009. The sniping between Penman and Morris continued even after the election season was over, with Penman blaming Morris for the city’s deteriorating financial posture and Morris citing Penman’s support of exorbitant city employee employment contracts.
While Penman touted himself as the conscience of the city, its moral compass and an astute lawyer who was guiding San Bernardino through a dangerous whirlpool of daunting legal challenges, others saw him as a blowhard who was unable to control his temper. In recent years he had run-ins with the city’s public works director and the director of community development in November 2011, then-police chief Keith Kilmer in October 2010; and then-city manager Charles McNeeley in 2011 and 2012.
In April of this year, a hastily formed action committee, San Bernardino Residents For Responsible Government, declared that they were gunning for the political heads of Morris, Penman and council members Wendy McCammack, Fred Shorrett, Rikki Van Johnson, John Valdivia, Virginia Marquez, Robert Jenkins, and Chas Kelley. The group said it was motivated in large part by the city’s filing for bankruptcy.
Eventually, the group called an end to its effort against Morris, who did not seek reelection this year and will leave office next March. It also discontinued the campaigns against Jenkins, Marquez, Shorrett and Van Johnson as well. It did proceed with the call to let voters decide on removing Kelley, Valdivia, McCammack and Penman, succeeding only in getting Valdivia, McCammack and Penman on the ballot for recall.
San Bernardino Residents For Responsible Government succeeded in getting 11,855 valid signatures affixed to the petition to remove Penman, 267 more than the 15 percent of the city’s registered voters  needed to place a citywide officeholder on the ballot as a recall candidate.
Two candidates, Gary Saenz and Tim Prince, emerged as alternate candidates to Penman. Prince is the son of Ralph Prince, whom Penman succeeded after his initial 1987 victory. And while Tim Prince failed to outpoll Saenz on Tuesday, meaning that Saenz is now San Bernardino’s city attorney, Tim Prince did run a spirited campaign calling for Penman’s removal from office. Prince will have the satisfaction of knowing that Penman’s defeat this week means that his father will remain, for the time being, the longest serving San Bernardino city attorney on record.
In the closing weeks before the election, on October 17, two of the members of the city council, Kelley and Jenkins, were charged with crimes, in Kelley’s case by the San Bernardino County District Attorney’s office, and in Jenkins’ case, by the Riverside County District Attorney’s Office.  Kelley resigned from office and pleaded guilty to utilizing political contributions for personal expenses. Jenkins, charged with a sordid assortment of crimes relating to fraud, forgery and identity theft in relationship to sexual harassment of one of his former homosexual lovers, has maintained his innocence. Penman, who was politically aligned with both Kelley and Jenkins, rushed to Jenkins’ defense, a move which may have hurt him on Tuesday. Penman also suggested without directly stating that he had been instrumental in launching the investigation that ended with Kelley’s guilty plea and resignation. The perceived implausibility of Penman’s claim regarding the prosecution of Kelley may also have hurt him at the polls on Tuesday.
Another factor in Penman’s removal was the $140,000 of his own money that Scott Beard, the leader of San Bernardino Residents For Responsible Government, threw behind the recall effort.
Penman, who prior to the recall vote said he was proud of his tenure in office and that he had the comfort of knowing that all along he had “fought the good fight,” was unavailable for comment after the election results were reported by the county registrar of voters office. Only 11,048 voters citywide participated in the recall vote against Penman, fewer than had signed the petition to force the recall question against him. Of those,     6,601 or 59.75 percent voted yes, while     4,447 or 40.25 percent voted no.

(November 6) The city of Chino Hills has determined that there are fewer homeowners encroaching on city-owned open space than was previously believed to be the case.
Nearly three years ago, Chino Hills city officials began a somewhat haphazard notification process related to what they believed were as many as 300 instances of  property owners in the city who had encroached on public open space. Those encroachments include trees, shrubs and other forms of landscaping in city-claimed open space in the most benign of the cases and consist of fences, walls, pavement, swimming pools, hot tubs and  structures in more serious situations.  Some of those improvements were undertaken by the present owners of the properties. In others, they were completed by previous owners.
In one of those cases, Michael and Kimberly Denton sued the city in 2011 after the city’s code enforcement division informed them in 2010 that the furthest extension of their backyard was encroaching on city-owned open space and that they had to remove their pool and spa along with landscaping that was already extant when they purchased their home on Hunter’s Gate Circle in 1999 from Gloria Vitagliano.
The Dentons offered the city $10,000 for the property, but the city rejected that offer, instead saying it would provide them with a 15-year easement for the continued use of the property.  The Dentons then retained the firm of Gresham, Savage, Nolan and Tilden to sue the city.
The Dentons claimed the city allowed the Vitagliano/Denton encroachment, which was conspicuous and open, to stand, and did nothing to interfere with Ms. Vitagliano’s or their occupation of the land for more than 15 years. Just prior to the case going to trial in September the city of Chino Hills consented to a “quitclaim” of the 1,574 square feet of land for the agreed-upon price of $11,000 and the Dentons’ willingness to pay escrow and document fees, together with their own legal costs in pursuing the lawsuit. The Dentons’ title insurance company, First American Title of Orange County, has covered the $11,000 purchase cost, escrow and document fees as well as Gresham, Savage, Nolan and Tilden’s legal fees. The city avoided the cost and risk of a trial. Nevertheless, it had accrued legal bills of $263,000 in response to the Dentons’ suit.
Earlier this year, as the Dentons’ suit appeared to be headed to trial, city officials considered defusing the encroachment issue altogether by offering  to sell the strips of property in question to those residents. In July, the city said it had undertaken a review indicating 238 residential properties within the city were encroaching upon city-owned open space. It sent out notices to those landowners, inviting them to attend workshops relating to the issue and dialogue with the city with regard to solutions. The city initially indicated it would impose fines or penalties on the encroachers and subsequently suggested that most of the encroachment issues could be readily resolved by the landowners involved paying somewhere between $6 to $17 per square foot to obtain title to the encroached upon open space.
Last week city officials said further research has led to the conclusion that there are not 238 encroached-upon strips of city-owned open space but 187. As a consequence of contact with residents both at city-sponsored workshops and in more direct exchanges, the city has directed staff to facilitate the purchases in those cases deemed appropriate and to go so far as to provide residents who cannot afford to secure financing at the time of sale so-called “due-on-transfer” clauses, and to rezone and remove the restrictions on any property transferred to the residents.
The city council also directed that staff not play hardball with regard to the selling price on the strips of land to be sold to the encroachers, such that the selling price should reflect the cost of the property at the time the residents purchased their property rather than the current higher fair market value. The council also said the city should facilitate the sale of not just “open space” that was encroached upon but be cooperative in allowing residents to purchase any park land inadvertently encroached upon by residential homeowners.  The council has also been persuaded to drop the “penalty” or “fining” provision of its earlier approach.
The council was insistent, however, that those residents participating in the purchase solution bear all title costs pertaining to the sales as well as any environmental review costs required under the California Environmental Quality Act.  Purchasers will need to make a 120-day notice of their intent to purchase, according to the guidelines suggested by the council.
In those cases where the encroachments entail health or safety hazards, the city council is opposed to allowing purchase of the land to go forward and will instead require that any improvements, landscaping or structures on the encroached-upon property be removed at the expense of the property owner in question.
Rossana Mitchell, a former city councilwoman who is also an attorney, said it is too early for the city to be discussing purchasing arrangements or pricing on the properties.  She noted that in recent weeks the city has acknowledged that of 238 cases of encroachment it earlier identified, at least 51 of those have been determined not to have entailed unauthorized property occupations after the lot lines were examined.
“My concern is the city hasn’t done a formal land survey on those properties,” Mitchell said. “It is premature to declare them as encroaching and make demands. Aerial photographs are not sufficient. The city needs to do its homework and a lot more information needs to be produced. They need to properly survey the property to determine if they are in fact encroaching on city property before making a valid claim to end the encroachments.”
Mitchell said undertaking such surveys would simply be “the first phase. The first question should be ‘Are they encroaching.’ The next thing would be to determine it it was done in good faith or bad faith. If it is a matter where a property owner clearly knew where the property line was and encroached, that issue has to be addressed and the city needs to enforce whatever codes it has to undo that violation. But at this time it seems that most of these cases were done in good faith where the owners had no idea that they were encroaching for the past twenty or thirty years. I think we have to look at each case individually.”
She reiterated that she believed the city was getting ahead of itself by calling for residents to purchase the property in question, in particular given the length of time that has passed while those property strips have been occupied by and improved by the city’s homeowners and the lack of hard data and documentation now at the city’s disposal.
“The city said there were 238 of these,” she said. “They are now down to 187, once they looked into it. I think it would have been wise for them to have looked into it and made sure they had valid encroachment claims before they sent out those notices and made claims that  upset people.”
In the lion’s share of the cases, Mitchell said, even if some encroachment occurred, “I think the city should grandfather their property [i.e., quitclaim title to the residential property owners]. If any buy-outs need to be made, it should be minimal. I don’t think the residents should have to pay for any of the processing or California Environmental Quality Act-required studies. The city either did not know about this or has neglected it for over twenty years. If the city did not know and the landowners did not know, they should not be subject to penalties after all this time.”

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. –Tenth Amendment to the U.S. Constitution

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. –Eleventh Amendment to the U.S. Constitution
(November 5) SAN BERNARDINO—In the battle that is raging between the city of San Bernardino and the state’s public employees’ pension system, the pension system is now striving to align itself with the state of California and citing both the Tenth and Eleventh Amendments to the Constitution in seeking to limit the city’s claim of protection from its creditors under the bankruptcy code.
The city of San Bernardino, which has been in a precarious financial position for years because of overspending, a stagnating economy, dwindling revenues and escalating costs including overly generous salaries paid and benefits provided to its municipal employees, last year filed for Chapter 9 bankruptcy protection.
While other large California Cities that have filed for bankruptcy such as Vallejo and Stockton have chosen to continue to make good on their commitments to their employees’ pension programs, San Bernardino has engaged in the exploratory strategy of testing whether it can withhold scheduled payments from CalPERS, the California Public Employees Retirement System, just as it would any of its other creditors under the rubric of its bankruptcy filing. Indeed, for thirteen months, from July of 2012 to July of 2013, San Bernardino failed to make a single payment to CalPERS, withholding more than $14 million in that time frame.
CalPERS is actually San Bernardino’s single largest creditor. In the pendency plan it put together as part of its bankruptcy filing, the city did not differentiate between CalPERS and any of the scores of entities it owes money to. The city maintains that if it is to get back on its feet financially, it must defer payment to a whole host of those it is in arrears to so that it can map its way out of the financial abyss it had sunk into. By restructuring the totality of its debt, city officials maintain, the city can streamline its function, eliminate its structural deficit, balance its budget and eventually, over the long haul, repay its creditors.
A handful of those creditors, however, have challenged the bankruptcy filing. Among those is CalPERS. In addition, CalPERS has consistently maintained that even if the bankruptcy were to be sanctioned by the court, which it has, that under state law, it should be excluded from the category of creditors that a municipality can withhold payments from.
Despite the opposition to its bankruptcy filing, U.S. District Judge Meredith Jury has ruled that the city’s debt restructuring shall proceed and she has delivered decisions favorable to the city in terms of the withholding of payments to its creditors.  With regard to CalPERS, Jury held that requiring the city to expend its scant revenue to cover retirement costs would undercut San Bernardino’s effort to get back on its feet financially.
Another of Jury’s rulings extended to state controller John Chiang’s effort to withhold from San Bernardino $15 million in property tax revenue after the state controller’s office and the state Department of Finance determined that San Bernardino had inappropriately transferred $108.4 million of its former redevelopment agency’s real properties, cash, and invested funds  to the city’s economic development corporation and further determined the city is hanging on to another $420.5 million of assets that should have been transferred to a so-called successor agency after the state’s shuttering of redevelopment agencies statewide in 2011.
When the state withheld the $15 million in tax revenue from the city, the city sued the state in March to prevent the state from withholding the tax revenue. Judge Jury ruled that the state could not withhold the revenue.
Just as CalPERS objected to Jury’s ruling in favor of the city relating to the retention of money owed to the state public employee pension system, the state is dissenting to Jury’s ruling forcing the state to turn over to the city the $15 million in property tax it is due while the city is withholding from the state $528.9 million it claims it is due from the city.
In an amicus curiae brief filed on November 1 in Jury’s court,  lawyers for the CalPERS cited the 10th and 11th Amendments to the U.S. Constitution in asserting the state of California has immunity from the city’s bankruptcy filing in much the same way CalPERS is not subject to the imposition of a bankruptcy court mandate to accept nonpayment from the city. The principle in both instances is that both the state and CalPERS have a priority claim to San Bernardino’s available money above all other of the city’s creditors under California law and those amendments prevent using the federal court from intervening to disrupt California law or its judicial processes.
The Tenth Amendment states that the federal government cannot go beyond the  powers granted in the Constitution. Under it, states and local governments have on occasion asserted exemption from various federal regulations, especially in the areas of labor and environmental controls, and have had some success preventing federal agencies and courts from overriding the authority and power reserved for and asserted by states.
The Eleventh Amendment prevents federal courts from overriding the determinations of lawsuits made by state courts.
Because municipalities are political divisions that are chartered by and fall under the authority of the state, they have a different relationship to agencies or extensions of the state such as the controller’s office, the state Franchise Tax Board, the Department of Finance or creatures of the state such as CalPERS than do other entities or creditors that are subject to federal bankruptcy law, CalPERS’ lawyers maintain.
“By characterizing [the city of San Bernardino’s] proceeding as merely one to prevent an action to collect on a debt, the bankruptcy court gave short shrift to the serious federalism concerns that this proceeding raises,” the brief states. “The Tenth Amendment, and our Federalism, does not take a back seat to Congress’s Article I powers.”
The city has argued that “the exception to sovereign immunity … plainly applies to this case and negates any sovereign immunity on the part of [controller’s office and the California Department of Finance].”

(November 6) In a significant reversal, Kevin Coduto was reinstated as Chaffey College Associated Student Body President less than a week after he was removed from that elected position in what is now acknowledged was an improper manipulation of the Associated Students of Chaffey College’s governing board’s authority by the college administration.
At the prompting of  Associated Students of Chaffey College Campus Council Adviser John Machado, who is answerable to Chaffey College President/Superintendant Henry Shannon, the Associated Students of Chaffey College’s governing body, known as the campus council, on October 21 adjourned into a closed session from which Coduto was excluded and then relieved him of his position and title as student body president on a two-thirds vote. Caduto was also removed as a student trustee during the closed session  vote. Student body vice president Carlotta Bohon was then appointed to succeed Caduto.
Upon the body’s return to open session, Bohon reported the action against Coduto had been taken based upon what she said was Coduto’s violation of Article III of the Associated Students of Chaffey College by-laws. Article III pertains to the need for student representatives to maintain “decorum” and avoid statements that would confuse their own personal views with that of the college or the student body as a whole.
Coduto had gotten on the wrong side of Shannon by endorsing Zafar S. Inam in the run-up to the November 5 Chaffey College Board of Trustees election in which Inam, was challenging incumbents Kathleen Brugger and Katie Roberts.
At the October 7 meeting of the Associated Students of Chaffey College, Shannon in his capacity as college president/superintendent made a rare showing before that panel, and was critical of Coduto’s endorsement of Inam, which he said represented an ethical misstep on the ASB president’s part. Shannon said having a student body president who was campaigning against two of his five bosses was making things difficult for him as the head of the institution.
“I got calls from my governing board members,” Shannon told the campus council. “It’s making it very awkward for me.”
The college president said the role of student body president put restrictions on Coduto’s free speech rights. “Kevin cannot just be Kevin if he’s elected by the student government society here at Chaffey College,” Shannon said.
Coduto, however, did not back down, insisting that he was entitled to make an endorsement as he saw fit, aslong as he made clear hewas speaking for himself. He was critical of what he said was Shannon’s effort to curb his free speech rights. He charged the president/superintendent with hypocrisy, pointing out that Shannon was attacking him for having engaged in political activity when Shannon has himself made political contributions to the college board members, at whose pleasure he serves as president/superintendent.
The move to depose Coduto as associated student body president, which was choreographed by Machado and director of student activities Susan Stewart, appeared to have been done at the behest of Shannon, who in his only public statement on the matter sought to deflect responsibility from himself by suggesting Machado had taken the action on his own initiative. Machado and Stewart are directly answerable to Shannon.
In the immediate aftermath of his removal, Coduto unreservedly stated he believed the action had been taken in violation of the Ralph M. Brown Act, the state of California’s open public meeting law, which requires advance notice of meetings, including an agenda of items to be discussed, considered or voted upon. Coduto questioned the legality of his removal on other grounds as well, noting he had been elected student body president by his peers at the college, had not been subject to a recall vote and was not given an opportunity to answer the charge that he had violated Article III, which he insisted he had not done.
Upon consideration of what had occurred, the college’s legal advisors apparently came to the conclusion that the action orchestrated against Coduto was illegal.
On October 25, Shannon’s second-in command, associate superintendent Sherrie Guerrero, released a memorandum stating the Associated Students of Chaffey College’s governing body was subject to the provisions of the Brown Act and all the closed sessions held by the student council were illegal and inoperative. According to Guerrero, the action removing Coduto and replacing him with Bohon was null and void.
“The district has been informed that the campus council attempted to remove Mr. Coduto from his position as president/student trustee in a closed session meeting on October 21, 2013,” the college district announced. “The district cannot recognize the executive board or the campus council’s actions with regard to Mr. Coduto at this time.”
The Associated Students of Chaffey College governing board announced on October 28 that Coduto has been reinstated and has so far not scheduled a public session at which it will attempt to undertake Coduto’s removal in compliance with proper procedural guidelines, including the Brown Act.
While Coduto told the Sentinel he was “happy to be reinstated as the student body president and student trustee,” he said he was “disappointed it had to be done by the Chaffey College legal department. It’s so clear that there was direct coercion from the board to Dr. Shannon, to the student government advisor, and then to the student government members to remove me from office, yet nobody is being held accountable.  The Associated Students of Chaffey College campus council advisor serves as the official parliamentarian of the group, and he directed the campus council to violate the Brown Act, yet there has not even been an admission of wrongdoing.”
Coduto said, “I’m still considering many actions to take. I would prefer to pursue a mutual agreement through an ad-hoc committee with the administration, faculty, and students on how we can work together to stop the coercion of students and violations of students’ freedom of speech from the administration. If the administration is unwilling to work with me, I am willing to take every measure possible in order to solve this problem.”