(April 19) Demurrer motions brought by Cadiz, Inc., the county of San Bernardino,  and the Santa Margarita Water District relating to two lawsuits filed by Tetra Technologies  are being considered by Orange County Superior Court Judge Gail Angler.
Tetra Technoligies, a salt mining operation near Amboy, filed several lawsuits challenging Orange County-based Santa Margarita Water  District’s approval of Cadiz, Inc.’s project to extract as much as 75,000 acre feet of water per year from aquifers in the Eastern Mojave Desert and transport that water via pipeline to Riverside, Los Angeles and Orange counties.
Santa Margarita, which has agreed to purchase a portion of the water from Cadiz, acted as the lead agency overseeing both the approval and environmental certification of the project. San Bernardino County, which contemplated challenging  Santa Margarita’s role as lead agency, instead last May entered into a memorandum of understanding (MOU) with Cadiz and Santa Margarita to facilitate the project and in October approved a plan groundwater management plan to allow the project to proceed.
In two of its lawsuits, Tetra Technologies asserted that the MOU should have been subject to the requirements of the California Environmental Quality Act.
Lawyers representing the county, Cadiz and Santa Margarita, however, in demurrer motions sought to have the lawsuits dismissed, asserting that the MOU merely set down a framework by which the cooperation between the parties could proceed and did not constitute approval of the project.
Robert Bower, an attorney for Tetra Technologies, however, told Angler that the approval of the MOU committed the county to a course of action, namely the approval of the project.

(April 19) The California Attorney General and San Bernardino County District Attorney have overstepped their prosecutorial authority and are engaging in “an impermissible charging scheme” in the pursuit of a bribery and conspiracy case against Rancho Cucamonga developer Jeff Burum and three former public officials, according to a defense brief filed with the Supreme Court on April 15.
Burum, along with former sheriff’s deputy union boss Jim Erwin, former county supervisor Paul Biane and Mark Kirk, who was chief of staff to supervisor Gary Ovitt, were named in a 29-count indictment returned in May 2011. Prosecutors alleged in that indictment that a 3-2 decision by the county board of supervisors in November 2006 to approve a $102 million settlement of the civil action brought against the county and its flood control division by the Colonies Partners over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland was tainted by extortion and bribery. That settlement was supported by Biane, Ovitt and former supervisor Bill Postmus. Burum, Erwin, Biane and Kirk  were charged variously with conspiracy to commit a crime, bribery, conflict of interest, tax fraud, tax evasion, perjury, forgery, and aiding and abetting.
In short order, defense attorneys filed demurrer motions on behalf of the defendants, i.e., assertions that there were insufficiencies in the charges. In August 2011, San Bernardino County Superior Court Judge Brian McCarville granted some but not all of those demurrers, dismissing five of the counts lodged against Burum, two of the counts Biane faced, two of the counts Erwin was charged with and one count pending against Kirk.
The prosecution then appealed McCarville’s ruling to the appellate court to have the charges reinstated. Defense attorneys likewise filed petitions with the appellate court, arguing that all charges that had been tossed should have been dismissed and asserting that McCarville should have sustained more of the demurrers than he actually did.
After nearly a year of consideration, the 4th District Court of Appeal on October 31, 2012 in a 41-page decision written by Justice Art W. McKinster and joined by associate justices Betty Ann Richli and Douglas P. Miller, upheld McCarville’s dismissal of part of a conspiracy charge plus four other counts against Burum, and tossed out a conflict of interest charge against Burum. At the same time, the appellate justices restored some elements of the conspiracy charge along with an aiding and abetting charge against Burum.
Burum, on of the managing principals in the Colonies Partners,   is considered the linchpin in the case, as he is the individual charged with bribing the others and all charges revolve around him. Establishing his guilt is seen as crucial to proceeding with the case against all of those indicted.
In December, the prosecution appealed the 4th District Court’s ruling to the California Supreme Court to have the bribery, conspiracy and related charges reestablished.
In March, supervising deputy attorney general Melissa Mandel filed a 43-page,  13,541-word opening brief with the California Supreme Court that described Burum as “a bribe offeror” who with Erwin “conspired to, and did, aid and abet the receipt of bribes by Postmus and Biane. Law, logic and public policy compel the conclusion that the prosecution should not be foreclosed from charging and proving that Burum conspired to and did aid and abet the receipt of bribes simply because he also offered the bribes.”
Mandel said McCarville and the 4th Appellate Court’s dismissal of conspiracy to aid and abet the receipt of bribes against Burum  erroneously relied on a case, People vs. Clapp, which by extension held that a provider of bribes could be charged with the provision of bribes but could not simultaneously be charged with conspiring with the bribe taker to receive the bribes.  “People v. Clapp should be overruled, because it erroneously holds that a person cannot be an accomplice to one crime if his or her conduct with respect to a transaction violates another provision of criminal law,” Mandel wrote in her brief.
Burum’s attorney, former U.S. District Court Judge Stephen Larson, in his answering brief, told the Supreme Court that the prosecution had failed to charge his client “with giving or offering bribes before the expiration of the statute of limitations. Instead, the People failed to bring timely charges against Mr. Burum, and the trial court and Court of Appeal properly rejected the People’s attempt to plead around the statute of limitations by using an impermissible charging scheme.”
In this way, Larson noted, Burum was not charged with bribery but rather with aiding and abetting two of the members of the board of supervisors – Biane and Postmus – with receiving bribes. Prosecutors allege separate $100,000 donations Burum made to political action committees controlled by Postmus and Biane constituted bribes, as did another $100,000 donation to a political action committee controlled by Kirk. Prosecutors allege Kirk influenced his boss, supervisor Gary Ovitt, to vote for the $102 million settlement.
Larson argued that the Court of Appeal correctly held that Burum cannot be charged with aiding and abetting the alleged receipt of bribes because an alleged bribe giver cannot be charged under Penal Code Section 31 with aiding and abetting the separate crime of receiving the bribe.
Penal Code Section 31 states “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission… or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”
At issue in this regard, according to Larson, are two precedents, the Clapp Rule and the Wolden Case. Both were raised in the rulings by McCarville and the 4th Court of Appeal.
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 her brief, Mandel summarizes the issues before the State Supreme Court as “Can a bribe offeror be charged with conspiracy to commit bribery, and aiding and abetting the receipt of a bribe, where his conduct satisfies the elements of those crimes?” and “Can a private person be charged with aiding and abetting a criminal conflict of interest violation?”
Mandel argued that ultimately the answer to those questions was “yes.”
In his answering brief, Larson stated, “There is no basis to overturn the Clapp Rule. The bribe giver lacks the requisite intent to aid and abet the receipt of the bribe under Section 31. The People’s attempt to limit Clapp and Wolden to Section 1111 ignores the legislative history  and judicial interpretations of Sections 31 and 1111.”
California Penal Code Section 1111 reads, “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
Larson asserted, “The Clapp and Wolden rule was properly applied to the charges against Mr. Burum. The alleged threats and extortion are irrelevant to the bribery charges. Holding that bribe givers and bribe receivers can aid and abet each other would undermine the legislative intent in amending Section 1111 and could thwart future bribery prosecutions.  The Court of Appeal correctly held that Mr. Burum cannot be charged with conspiring to commit the crime of receiving the alleged bribes.  The Court of Appeal properly relied on Wolden.”
The precedences of the Clapp and Wolden cases have been for so long established that they have become standards under California jurisprudence, Larson maintained. Thus, even if the Supreme Court overturns both Clapp and Wolden, “due process prohibits retroactively applying the new rule of law to Mr. Burum.” Such an application would be an ex post facto application of law, that is, enforcing a law that did not exist at the time of the alleged crime’s commission, Larson maintains.
Larson also 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.
“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. The Court of Appeal properly based its ruling on the legislative intent to exclude aiding and abetting liability.”
While for the most part, Larson asserted that the Court of Appeals had engaged in sound analysis of the criminal case and made accurate rulings, he did take issue with the Court of Appeal’s finding that Burum should stand trial for improperly seeking to influence public officials, a crime prohibited under Government Code Section 9054.
“The court of Appeal erred in finding that Government Codes Section 8954 was constitutionally sound,” Larson wrote.

(April 19) Less than a month before he would have marked two years as Twenynine Palms city manager, Richard Warne was shown the door last week, following a closed door meeting of the city council on April 9.
Strict secrecy was maintained with regard to the firing, which according to a well-placed source was made upon a unanimous vote of the council. Warne departed City Hall that evening and did not return.  No immediate public announcement of Warne’s departure was made, however.  Without fanfare, City officials on Wednesday morning, April 10, contacted the firm of MuniTemps, a La Mirada-based firm which bills itself as offering municipal staffing solutions. By April 12, MuniTemps had arranged for Homer Croy, the retired city manager from Palm Desert, to take up the interim city manager assignment in Twentynine Palms.
On Monday, the city issued a press release announcing Warne’s leaving, characterizing his exodus as a “retirement.”
The Sentinel has learned that Warne did not leave of his own accord, but was terminated by a vote of the council, for no cited cause. Based upon the termination clause in Warne’s contract, he is to receive a full year’s compensation, including his salary of $171,500, a pension contribution of $4,287.50 and another $12,432 toward his retirement fund and $16,306 to cover his health plan. He is also to be paid a lump sum for all accrued but unused administrative leave and vacation time, and shall be paid for any unused sick leave.
Confirmation that the city was indeed providing Warne with severance pay undercut the representation that Warne had voluntarily retired. His contract did not provide for severance pay in the event of his taking retirement.
The local media, led by KCDZ 107.7 FM, cast doubt on the retirement claim, prompting City Hall to issue a clarification on April 17, which stated, “the council and Mr. Warne came to the mutual agreement that it would be best for him to retire in lieu of termination and he was provided severance as per his employment agreement.”
What remains unclear to most of the public at this point was the basis for the council’s decision to force Warne’s exodus.
A burning community issue has been the Local Agency Formation Commission’s pressure upon the Twentynine Palms Water District to divest itself of operational control of the fire department. One faction within Twentynine Palms had pressed the city to take on responsibility for the fire department. Warne had resisted that call, insisting that the city could not afford to bring the fire department in-house, given not only the operational cost but the pension liability absorbing the department’s seven personnel would represent to the city. He instead favored having the water district hand the fire department over to the county, but that option would have likely resulted in at least three of the six firemen employed in the department below the rank of chief being terminated and one of the department’s two fire stations being shuttered.  Ultimately, the city council followed Warne’s recommendation to pass on subsuming the fire department. Nevertheless, his position embittered much of the community, and he was attacked in both public forums and on internet postings as “a disaster,” and  “someone who hates Twentynine Palms firefighters,” as well as  “against public safety.”
Warne was particularly crosswise of Cora Heiser, who was elected to the council in November and was strongly in favor of a city takeover of the fire department. She characterized Warne’s January presentation of his findings that the city could not afford to take on the fire department as “uncouth.”
Despite the enmity Warne’s stance engendered, Councilman Jay Corbin  told the Sentinel that it was not his resistance to the fire department takeover that resulted in his forced departure. “That is evidenced by the 3-2 vote  of the council to follow his advice and not absorb the fire department,” Corbin said. The councilman acknowledged that Warne’s stand had garnered him enemies, but the council had not held that against him. “I told him I thought his assessment of the fire department was harsh,” Corbin said. “I also told him I agreed with his assessment.”
Corbin hinted, but did not directly state, that the council had other grounds for threatening Warne with termination. “I can’t get into that,” Corbin said. “It’s a personnel issue.”
On April 15, a committee of the city council interviewed two of the five finalists that had applied for the city manager’s post in 2011 when Warne had been hired.
“We are very close to getting a new city manager,” Corbin said. “I can’t tell you more than that at this point.”
“The council wishes to thank Mr. Warne for his service and express appreciation for the many positive contributions he provided to the city during his tenure,” the city’s April 17 statement says.
Croy told the Sentinel that he had no contact with Warne and did not anticipate nor expect Warne’s assistance in making a transition.
“I am just here to see that the city’s day-to-day operations continue to move forward,” Croy said.

(April 19) Having outdistanced four other candidates vying to succeed  Gloria Negrete-McLeod as State Senator in the 32nd District, Ontario Mayor Paul Leon is now looking to best former Pomona mayor and current assemblywoman Norma Torres in a run-off election May 14 to move into the California Legislature’s upper house.
A Republican, Leon is seeking to propound the conservative fiscal principles of his party in a campaign against Torres, a Democrat whose party enjoys a 48 to 28 percent registration advantage over Republicans in the 32nd District.
On March 12, Torres and Leon fought to the top of the heap of six candidates in the special election that was held because Negrete-McLeod, who was reelected to a four-year term in the state Senate in 2010, resigned that post to depart to Washington D.C. after she was elected to Congress in November.
Torres proved the top vote-getter with 13,295 votes or 43.6 percent throughout the district, which spreads into both Los Angeles and San Bernardino counties. Leon polled 8,064 votes or 26.4 percent in both counties. Since no candidate captured a majority of the vote, the run-off will be held on May 14.
Torres and Leon bested Democrat Larry Walker, with 13.9 percent; Joanne Gilbert, also a Democrat, who received seven percent; Ken Coble, a Republican, who polled 6.5 percent; and Paul Vincent Avila, a Democrat by registration who was disowned by his own party after he engaged in the highly unorthodox move of endorsing Leon, who garnered 2.6 percent.
Despite the voter registration numbers in the 32nd District favoring Democrats, Leon believes he can make a successful electoral appeal based upon what he insists is the Republicans’ more level-headed approach to governance and his demonstrated success in applying those Republican principals to Ontario, which is the most successful city in San Bernardino County in terms of economic performance and revenue generation based upon sales tax inflow.
“The way this state has of creating overregulation kills jobs,” Leon said, noting that what he called the tax and spend philosophy of the Democrats, who now have a supermajority in both the state Senate and Assembly, is to blame for the overregulation.  The tide is turning against the Democrats, Leon said, despite the political upper hand they now hold. “People have this idea there will be this groundswell and  all of the things the Democrats are pushing will end in one swoop,” he said. “That isn’t true. We [the Republicans] need to take each seat we can back to change the face of politics in the state to California.”
Leon cited the experience Ontario had in fighting off challenges to a WalMart superstore that is supposed to be built at Fifth and Mountain in Ontario at the site of the old White Front Department Store. He said the delay in that project is directly attributable to the overregulation mentality typical of Democrats and the legislation they have put in place allowing for the proliferation of lawsuits against development of commercial uses on environmental grounds.
“In Ontario we fought for nine years to allow a WalMart to come in,” Leon said. “That WalMart represented more jobs and an increase in local business and tax revenues but it was challenged for years by a California Environmental Quality Act lawsuit. Becaue of the holdup, the city of Ontario lost into our general fund over $8 million and that does not include the increase in business that would  have taken place around that center. That is just one example of what is going on in the state of California. Businesses are leaving the state or never opening up in the first place because they don’t want to pay what the state of California imposes on them in terms of taxes and regulations.”
Leon said he represents a superior choice to Torres because of both his party affiliation and basic political orientation.
“The Democratic Party, in my mind, has not remembered what it takes to run local municipalities,  and having one more Democratic senator will exacerbate the problem,” Leon said. “My intention is to balance the scales in Sacramento and help undo the mismanagement and bring fiscal responsibility. My main objective is to put California back to work so our citizens have the money to pay for goods and services, so we can rejuvenate the economy.”

(April 19) JOSHUA TREE— The marring of boulders, rock outcroppings and other features within Joshua Tree National Park with graffiti has become so pervasive that earlier this week federal park officials closed several of the most popular hiking trails in the area to the public. More than 300 acres of the park deemed most vulnerable to vandalism have been declared off limits.
Rangers have found no fewer than 19 effaced areas within Rattlesnake Canyon alone, including world-renowned rock formations and historic Native American grounds. At Barker Dam, a century-old landmark, vandals used knives, chisels or other implements to scrape or carve words into the concrete.
Graffiti has long been a reality at the park, but was relatively limited as visitors to the remote desert area seemed for the most part to have a reverence for the wonders of the natural landscape there. But vandalism at Joshua Tree National Park has increased markedly in the last six to eight months, brought on, it seems by the new phenomenon of taggers posting photos of their handiwork on the internet, prompting others to join with them in a competition to scar the terrain. An effort is now underway to determine if those responsible can be identified. In some instances, the graffiti appears to be the names of the perpetrators. Some of the photos have been posted on social network sites such as Facebook.
Vandalism in a National Park is punishable by a fine of up to $5,000 or six months in jail. Defacing a historic Native American is a felony, with fines of up to $25,000 and prison terms of more than one year.

(April 19) TWENTYNINE PALMS — The Twentynine Palms Band of Mission Indians is moving ahead with what has been dubbed the Tortoise Rock casino project on tribal land in Twentynine Palms, and is seeking to have the gaming facility open by late this year.
The casino will become the third gambling house in San Bernardino County and the second one owned by the Twentynine Palms Band, which since 1995 has operated the Spotlight 29 Casino in Coachella in Riverside County.
In 2007, the tribe submitted an application for a 60,000-square-foot casino with 350 slot machines along with table games, a bingo hall, two restaurants, a sports bar, an RV park that would accommodate up to 100 RVs and also provide tent camping and rustic cabins, campfire rings and barbecue facilities, as well as hookups for  electricity, water, cable TV, and wastewater treatment. The project also called for wireless Internet access, swimming pools, showers, locker rooms, and a laundry facility.
The tribe temporarily abandoned the plan for the facility to be located on a site south of Baseline Road and west of Adobe Road, after both the Department of Defense and the National Park Service stated their opposition to what the tribe then called the Nüwü Casino. The Marine Corps was less than enthused at the prospect of having the temptation of a gaming enterprise at such easy disposal to its troops. The project site is located within the city of Twentynine Palms’ National Park Buffer Overlay, which is intended to deter development that will interfere with the natural panorama.
Two-and-a-half  years ago, the tribe sought to relocate the proposed Nüwü Casino some 23 miles away, in Joshua  Tree, on a 130-acre parcel on the north side of Twentynine Palms Highway west of White Feather Road east of downtown Joshua Tree and just east of Desert View Homes’ metal dinosaurs. That site was well outside the tribe’s reservation and what is recognized as the tribe’s ancestral land, so the tribe was required to file an application with the Bureau of Indian Affairs to place the land in a public trust and transfer the tribe’s right from its tribal property to the Joshua Tree site. That would have involved making a case that the tribe had ancestral roots in the Joshua Tree area, where it had an historical relationship to the property in question by virtue of aboriginal activity, including hunting, foraging and trading in particular.  That application would have entailed an anthropological study to demonstrate the tribe’s ancestors ranged into Joshua Tree.
Tribal Chief Darrel Mike and his advisors, including the band’s chief financial officer, Steve Gralla, reassessed the likelihood of prevailing in a bruising battle with those opposed to locating the casino in Joshua Tree.
The local land use authority vested in the city of Twentynine Palms is not applicable to tribal land, since Indian Tribes are held to be sovereign nations.
Twentynine Palms interim city manager Homer Croy this week told the Sentinel, “That is Indian tribal land and it falls under a different jurisdiction. It is my understanding that some of our [city] council members attend the tribal council meetings, where those [land use] issues are discussed. The authority is the tribe’s. They can work with us as far as mitigating those issues but we have to wait to find out what their decisions are. They are the final authority and the city has no control.”
By early this year, the tribe abandoned entirely its plan for the Joshua Tree casino and instead submitted a draft environmental impact report for the project within 29 Palms to the state. That draft has been finalized and accepted. This week, Croy told the Sentinel, “I was out at the site and they have the property fenced off and are saturating the ground for pre-grading.”
The environmental report for the project, prepared by Sacramento-based Environmental Science Associates, says the 30,000 square-foot casino will sit on a site extending to cover a footprint of roughly 32 of the 160 acres at that location owned by the tribe and will include a parking lot with 450 parking spaces.  The casino will be 35 feet high and offer its customers 500 slot machines, six card or roulette tables, a delicatessen, restaurant, bar, administrative offices and ancillary structures. The casino will employ approximately 100 full- and part-time workers. A tortoise-exclusion barrier will be erected to protect that species from danger that might befall it on the to-be-developed property.
In keeping with its presence within the National Park Buffer Overlay, the casino’s design is to incorporate natural colors in its building materials and paint schemes that complement the existing landscape as well as to shield its external lighting to keep light from being projected upward or onto adjacent property, in keeping with Twentynine Palms’ Night Sky Ordinance, according to the draft environmental statement for the project.
The casino will be visible from Palm Vista Elementary School on Baseline Road, located 3,375 feet northeast of the project, as well as the  Oasis of Mara, which is a half mile northeast of the site. According to Environmental Science Associates, the one-story structure will obstruct to some degree the scenic views from residences to the north and east, Palm Vista Elementary to the northeast, the Oasis of Mara and those of motorists transiting Baseline Road, Adobe Road and Utah Trail. That obstruction will not be total, according to the draft report. “[T]he tops of mountainous areas to the south and west would still be visible behind the proposed development,” according to the draft statement.
Some negative impact on air quality in the nearby area will result from construction activity, according to the environmental impact report.
Water to the project will be provided by the Twentynine Palms Water District, which will extend services to the site by means of an 8-inch water line on Baseline Road.

Fontana Unified School District Superintendent Cali Olsen-Binks, who rose through the ranks at the district to become top administrator five years ago, will leaving her position at the end of the current school year to become superintendent with the Yucaipa-Calimesa Joint Unified School District.
The announcement of Olsen-Binks departure comes just five months after her mother-in-law, Kathy Binks departed after 24 years on the Fontana School Board.
Olsen-Binks was originally an elementary school teacher within the district, which boasts 40,000 students. She began her teaching career in 1990.
Olsen-Binks encountered rough sledding over the last four years as the state has steadily reduced education funding. Factionalism on the school board made for strained relations with some of those she had to answer to. On four occasions within the last 13 months, the board held closed door sessions in which her possible firing was discussed, though the board did not pull the trigger on her. The two members of the school board who had asked for Olsen-Binks’ performance reviews, Leticia Garcia and Sophia Green, are now the target of a recall effort.
She said her departure from Fontana is a bittersweet one that will be best for her family. The Yucaipa-Calimesa district has about one fourth the number of students as Fontana Unified.

(April 12) ONTARIO–The jousting between Los Angeles World Airports, the entity that manages and operates Ontario International Airport, and Ontario municipal officials and their allies continues over the terms by which the ownership of the airport should be returned to Ontario.
This week,  Ontario rejected Los Angeles’s offer to sell the airport back to Ontario for $474 million and then followed up with a threat of legal action against Los Angeles.
Ontario, which deeded the airport to the city of Los Angeles in 1985, has come to rue that move.
While Ontario Airport prospered and grew under the management of the Los Angeles Department of Airports for four decades, since 2008 passenger traffic into and out of Ontario  has steadily declined. Ontario officials blame Los Angeles and its successor to its Department of Airports, Los Angeles World Airports, for the decreases. They maintain that Los Angeles World Airports (LAWA) has purposefully operated and promoted the airport inefficiently as part of its design to promote ridership at Los Angeles International Airport.
In response to an ever more vituperative campaign by Ontario officials, LAWA officials, on behalf of Los Angeles, have been negotiating transfer of control of the airport, or outright ownership, with Ontario officials.
Since the forging of an agreement between Los Angeles and Ontario in 1967, Los Angeles, first under its Department of Airports and then under the aegis of LAWA, has managed the airport’s operations.
Using its leverage over  airlines based upon its ability to dole out or withhold favorable gate positions at Los Angeles International Airport, the Los Angeles Department of Airports induced more and more airlines to fly into and out of Ontario. By 1969, flights out of Ontario dramatically increased. In short order, Continental Airlines, PSA, Western, United, American Airlines, Hughes Air West, and Delta established routes from Ontario. In the early 1970s, Ontario was in competition with John Wayne Airport in Orange County, which at that time was expanding dramatically. Though a benchmark of 10 million passengers at the airport by 1975 was not achieved, the Los Angeles Department of Airports still assiduously promoted Ontario International.  In 1981, a modern, second east-to-west runway was built, necessitating the removal of the old northeast-to-southwest runway. Los Angeles officials stepped up pressure on Ontario officials to have them cede ownership of the airport in total to Los Angeles, but Ontario’s then mayor,  Robert  Ellingwood, resisted, maintaining that all of the criteria specified in the transfer portion of the 1967 agreement had yet to be met. As tensions mounted between the cities and Ontario began levying a parking tax at the airport, which L.A. objected to as unwarranted and illegal in a lawsuit, Ellingwood pressed for the recission of the joint powers agreement and for Ontario to take full control of the airport. Los Angeles, which  had control over the revenue being generated at the airport and was bankrolling the cost of operations there, threatened to stand down from the joint powers agreement, leaving Ontario in the position of paying all operational costs.  Ellingwood’s four council colleagues, believing Ontario did not have the financial means to operate the airport on its own, broke with him and during Ellingwod’s absence from the February 19, 1985 council meeting, voted 4-0 to transfer title to the airport to the city of Los Angeles.
In 1987, the departure runway was extended to the east.  In 1997 and 1998, Los Angeles built two modern 530,000-square foot terminals at the airport at a cost of $270 million. In 2005-2006, the airport’s departure runway was repaved, received storm drains, and runway lighting was improved. The airport’s taxiways were widened. The same year Aeroméxico started seasonal flights to Guadalajara and Mexico City, making Ontario a true international airport.  The airport was also renamed Ontario/LA International Airport, ostensibly to avoid confusion with an airport in Canada.
In 2007, use of the airport peaked, with 7.2 million passengers enplaning there and using its terminals. In recent years, Ontario Airport has seen its use decline. In 2008, 6.2 million passengers took flights from the airport, a drop of 13.5 percent compared to 2007. In 2009, the airport had 4.95 million passengers pass through it. That trend continued in 2010, with 4.8 million travelers flying from Ontario International. Simultaneously Los Angeles World Airports was undertaking a flurry of improvements at Los Angeles International Airport intended to make traveling in or out there more convenient to its passengers.
Just under 4.6 million passengers took flights out of Ontario International in 2011. That figure dropped to 4.5 million in 2012.
In 2009, Ontario officials, believing that Los Angeles airport officials were intent on driving up passenger traffic in Los Angeles, potentially to the detriment of Ontario, began a dialogue with Los Angeles World Airports about combating the downward trend in passenger traffic at Ontario. But Los Angeles airport officials were not keen on surrendering any share of the market Los Angeles International had captured in the aftermath of the extensive improvements made there. They countered with offers to improve the marketing of Ontario Airport, at one point offering to bankroll such a marketing campaign to be run by Ontario officials. Ontario declined that offer.
Ontario officials gravitated toward the conclusion that reacquiring the airport was paramount and that not leaving its destiny in the care of Los Angeles officials, whose first loyalty consisted in keeping Los Angeles International Airport thriving, was the only realistic approach to the problem.
They began pushing Los Angeles to allow a public agency-to-public agency transfer of the airport at no consideration, reversing the 1985 action.
Los Angeles officials balked at that.
Quietly, so as to not publicly contradict its official position that the airport grounds are a public benefit property and thus of no sales value, the city of Ontario privately tendered a $250 million offer to Los Angeles World Airports for transfer of the airport’s title and operational control. That offer included the city assuming $75 million of the outstanding bond debt obligations for past improvements to the airport, $125 million in future passenger facility charges to be realized at the airport and $50 million cash.
Los Angeles World Airport officials scoffed at the $250 million figure, pointing to the $560 million in improvements made to the airport since 1967 utilizing revenues generated at both Ontario and Los Angeles International Airports, Federal Aviation Administration grants, and proceeds from bonds issued by the city of Los Angeles at Los Angeles World Airports’ direction.
Last year, Los Angeles World Airports commissioned an appraisal of Ontario Airport by the consulting firm of Leigh Fisher, which pegged the airport as being worth at least $243 million and as much as $605 million, depending on cash flow expectations over the next half century.
Los Angeles World Airport officials indicated that bargaining toward an eventual sale would start at the high end of the estimate, i.e., $605 million. At one point, Gina Marie Lindsey, the executive director of Los Angeles World Airports, indicated  that a buyer, public or private, would need to put up $560 million, an amount equal to the investment in improvements made at the airport over the last 45 years while Los Angeles has had operational control there. Privately, Los Angeles World Airports officials have suggested Los Angeles would be amenable to selling the airport to Ontario for $450 million.
Ontario officials, who created with the county of San Bernardino the Ontario International Airport Authority last year as an entity intended to eventually wrest ownership of the airport from Los Angeles and subsequently manage its operations, maintain Los Angeles World Airports has greatly inflated the airport’s value.
The Ontario International Airport Authority recently commissioned Oliver Wyman, a New York-based consulting firm, to review and refute Leigh Fisher’s estimation of the airport’s fair market value. Oliver Wyman delivered a document that met Ontario’s specifications, one that said the property was not worth the  $243 million to $605 million Leigh Fisher derived but rather had a breathtaking value below zero – i.e., from negative-$78 million to negative-$104 million.
“The low valuation for ONT (the Federal Aviation Administration acronym for Ontario International), even under a privatization valuation approach, should come as no surprise to anyone who has analyzed ONT’s finances, high airport charges, competitive position and passenger traffic trends,” according to Oliver Wyman.
Oliver Wyman paints a picture of such dire prospects at Ontario Airport that it leaves the reader of  the report questioning why any entity would be interested in acquiring it.
No investor using sound investment guidance criteria would consider purchasing the airport, Oliver Wyman maintains. The average rate of return for the S&P 500 since the Great Depression has stood at 7.1 percent annually. Even if the airport were to be valued at the minimum $243 million Leigh Fisher envisioned for it, it would still need to garner $17.25 million in profit per year to meet the S&P average, which Oliver Wyman asserts, “is inconceivable… based on ONT’s revenue and operating profile.”
In fact, the airport is incapable of generating any profit whatsoever, Oliver Wyman maintained, in that expenses will outrun revenues.
Oliver Wyman said Leigh Fisher’s notion that a private operator can take over Ontario Airport and drive down its per enplaned-passenger charge – which at $12.68  is one of the highest in the nation  –  and then operate successfully charging $10 per passenger was highly questionable.
Oliver Wyman pitched the concept of making a public agency-to-public agency transfer of the airport for no consideration. That option was more viable, Oliver Wyman wrote, than selling the airport to a private operator, which the firm said, would not be able to run the facility at a profit.
In delivering the report, Oliver Wyman acknowledged it was hampered by not having available, and not being able to rely upon, financial documents relating to Ontario Airport’s operations that are in the exclusive possession of Los Angeles World Airports.
This week, in a letter to Lindsey dated April 10 and stamped “privileged and confidential” but which was immediately leaked to the press, Ontario City Manager Chris Hughes referenced Lindsey’s heretofore undisclosed $474.5 million counteroffer to sell the airport made in response to Ontario’s $250 million purchase proposal. Hughes rejected that counteroffer and threatened legal action, stating, “LAWA’s approach in this matter…leaves Ontario with no meaningful option other than to pursue its legal remedies arising from LAWA’s conduct in connection with the airport.” On Thursday April 11, the Washington, D.C.-based law firm of  Sheppard Mullin Richter & Hampton  filed a 67-page administrative claim against the city of Los Angeles and Los Angeles World Airports charging them with chronic mismanagement of the airport. The claim seeks to abrogate the 1967 joint powers agreement between the two cities.

(April 12) Upland Councilman Gino Filippi this week was on the cusp, or so it appeared, of achieving a significant breakthrough in preparing for his future political efforts.
Previously, the city had adopted campaign contribution limits that restricted elected officeholders from receiving more than $2,000 from any single donor per four-year election cycle.
In Upland, all elected officials – the mayor, city council members and treasurer – are elected to four-year terms.
Before the campaign contribution ordinance was passed in 2011, Filippi garnered election to the city council in 2010. In 2012, with two years yet remaining in his term as councilman, Filippi ran for mayor against incumbent Ray Musser. Also in the race was Musser and Filippi’s council colleague, Debbie Stone.
Filippi proved to be by far the most prolific fundraiser, taking in $91,722.47 to fuel his mayoral campaign. Musser brought in a total of $27,625.56. Stone ran her campaign on $4,748 in donations. A number of Filippi’s donors provided him with money that neared or equaled the $2,000 per entity donation limit. Despite his fundraising prowess, Filippi lost to Musser.
In 2014, Filippi has intentions of running for reelection to the council again, perhaps positioning himself for another mayoral run in 2016.
In recent months, Filippi has posited an argument that the spirit of campaign contribution reform involved the intent of curtailing the influence of donors per election rather than per four-year term. In this way, Filippi asserted, those seeking or holding council office who are also vying for mayor two years after a council run, should be eligible to receive $2,000 per donor for each election, for the council and for mayor.
Musser did not see it that way, arguing that the $2,000 contribution limit from any particular donor was intended to limit the donor’s influence over the politician, or politicians, in question. For that reason the $2,000 restriction should stay in place, Musser asserted, regardless of whether the politician runs just once every four years or twice every four years.
In March, the city council took up the issue but failed to come to a clear consensus, and tabled the matter to give the city attorney and the council advisory committee an opportunity to review the regulations to determine what the advisory committee, which had recommended the limitations to the council in 2011, had intended.
This week the city council was provided with the input of the advisory committee and the city attorney which basically called for Upland’s campaign contribution ordinance to impose the limit per election.
A divided council, with Glen Bozar and Brendan Brandt joining with Filippi, voted to direct the city attorney to redraft the ordinance, changing the limitation to each election a candidate is involved in, so that the proposed changed ordinance can be brought back for a vote at a later meeting.
At that point, it appeared that Filippi had obtained an outcome that was in keeping with him being able to exploit his fundraising talent  in future elections.  But sly Mayor Musser, who has been a member of the city council since 1998, utilized his control of the gavel and mastery of parliamentary procedure to outfox Filippi.
Before moving on to the next order of business, Musser inquired of the city attorney whether he could make a motion at that point to reduce the contribution limit to go into the newly drafted ordinance. He was told that he could indeed do so. Thereupon, Musser made a motion to reduce the contribution limit from $2,000 to $1,000. That vote passed by a 3-2 margin, with Musser, Stone and Bozar supporting it.
In this way, the redrafted campaign limitation ordinance to be considered by the council will have the effect of attenuating one of Filippi’s major political assets, that is, his ability to draw substantial money to his electioneering efforts.
Musser, who of late has been belittled and lampooned by his critics and political foes as a doddering yokel who is  unable to keep up with the pace of events or his younger council colleagues, showed with his adroit maneuver that he remains a political force to be reckoned with and even faster  on his parliamentary feet than those decades his junior.
Asked what he thought of being outmaneuvered by Musser with his add-on ploy, Filippi noted that the actual redrafted ordinance has yet to come before the council and he hinted that there will still be an opportunity to liberalize the campaign contribution law.
“This isn’t over yet,” Filippi said.

(April 12) Grand Terrace Mayor Walt Stanckiewitz recently defended his administration’s handling of the challenges facing the city, asserting that under his watch the city has defied doomsayers that predicted the town’s demise because of a perpetually weak revenue base that has been worsened in recent years by the economic downturn.
Stanckiewitz, who zoomed into the mayoralty in some measure on the strength of his criticism of the city’s historical reliance on diverting money from its redevelopment agency to shore up its general fund, was nevertheless critical of the state’s wholesale dissolution of municipal redevelopment agencies in 2011, which he said puts Grand Terrace at a disadvantage.
Moreover, the mayor said he was determined to go hat in hand to the city’s residents later this year to request that they approve some form of tax to provide the city with more substantial operating revenue.
Though the county Local Agency Formation Commission did not oppose Grand Terrace’s incorporation in 1978, the commission’s staff was skeptical of the city’s ability to generate sufficient tax revenue to sustain itself as a municipality. From the outset, the city’s limited population and its geographic isolation  which discourages outsiders from traveling through it translated into a severely limited number of shoppers frequenting Grand Terrace’s modest commercial district.
Today, among San Bernardino County’s 24 incorporated cities, Grand Terrace is the third smallest population-wise, with 12,040 residents. It ranks 24th as a producer of tax revenue of all sorts, such that it has the most meager of the county’s 24 municipal budgets. The city’s financial status as a municipality being outhustled by practically every other incorporated city in Southern California for tax revenue clashes with the image the city has enjoyed otherwise. In 2007, Money magazine ranked Grand Terrace as one of the United States’ “Top 100 Cities to Live In.”
For years, under the stewardship of former city manager Tom Schwab, the city made a practice of diverting a sizeable amount of the Grand Terrace Redevelopment Agency’s available funding into the city’s general fund, using that money to defray a portion of municipal operations.
Schwab, who began with the city in 1984 as a finance department employee and became city manager in 1989, left as city manager in 2008, which corresponded with Stanckiewitz’s election to the city council. Stanckiewitz was outspokenly critical of Schwab’s use of redevelopment money to fund city operations and in 2010, successfully ran for mayor as a municipal and financial reform candidate in a campaign which made frequent reference to Schwab’s diversion of redevelopment money.
Upon becoming mayor, however, Stanckiewitz was given a very dire assessment of the city’s financial standing and in his first state of the city speech just a few months after becoming mayor he raised the specter of disincorporating the city and returning the 3.502 square miles within its city limits to the county for administration. Simultaneously, the city was hit with the state’s dissolution of redevelopment agencies as well as being informed by the county auditor-controller that in 2008-09 and 2009-10, the auditor-controller’s office, which handled the apportioning of state redevelopment pass-through funding, had mistakenly credited Grand Terrace with $2.294 million that should have gone to the redevelopment agency for the San Bernardino Valley Municipal Water District. That overpayment was later recalculated to actually have been $2,052,000. Grand Terrace has since entered into an agreement to repay that money over ten years, tantamount to  a $205,200 shrinking of the city’s yearly budget for the next decade.
Stanckiewitz stridently assailed the state for the destruction of  redevelopment as a tool available to his city.  That raised questions about Stanciewitz’s earlier attacks on Schwab for his creative use of redevelopment funding. Stanckiewitz’s growing chorus of critics noted that as mayor he was put in the position of having to deal with the city’s intrinsic financial shortcomings and was fairing no better than had Schwab, who for 19 years had sustained the city. In the light of harsh financial reality, it was said, Stanckiewitz’s criticism’s of Schwab’s approach were not only politically motivated, but self-delusional and mean-spirited, as well.
Stanckiewitz rejects those portrayals, maintaining that Schwab’s formula was one of using the redevelopment agency as a crutch, such that the city never adjusted to walking on its own.
“The truth is we never did develop an adequate tax base and relied heavily, too heavily, on our redevelopment agency to cover general fund expenditures,” Stanckiewitz said. “Mr Schwab’s strategy was to substitute available redevelopment funding for economic development. We are weaning ourselves from [our financial dependency on] the redevelopment agency. When you are as dependent on your redevelopment agency to shore up your general fund as Grand Terrace was, that is not something you can do overnight.  This is something the state is forcing us to do, but we have been cutting and cutting for years, so we are not in a position where this shocked us. We are not, for example, as hard hit as the city of San Bernardino. It is basically a structural deficit. We have got to address those problems that were identified by LAFCO [the county’s local agency formation commission] when we formed as a city 35 years ago. We were told by LAFCO that we don’t have the tax base we need to hold together as a city. Now we are faced with the cold hard facts. What we will now need to do is go out with a tax measure.”
Stanckiewitz said he believes a vote can be scheduled for later this year to get the tax in place, if the voters approve it, by January 1.
“We could have that on the ballot in November if we hit all the time lines right,” he said.
He said he had no fear of asking the people he represents to tax themselves for the city’s sake.
“I think if we lay it out right and explain it  to people and involve citizens in the city so they know the whole process and give them the choice and say, ‘This is what it will cost to keep the services you are accustomed to. If you don’t approve it, we will be providing you less service,’” Stanckiewitz said.
In fact, Stanckiewitz said, the reductions that will be necessitated if no tax is imposed will result in Grand Terrace residents “receiving less service than if we were part of the county. We need to lay it out and show people we are not asking for pie in the sky to start grandiose programs but just want to maintain our little city to the level of service we are accustomed to having.”
While he is now the mayor and the chickens are coming home to roost, Stanckiewitz said, he is not the one to blame for the city’s long slide into the fiscal morass. He insisted Schwab was the culprit.
‘Thirty years passed and nobody did anything,” he said.
As the guy in office now, Stanckiewitz said, he is looking for long term solutions. The foremost prospect he sees is expanding the city’s commercial base and generating more sales tax.
“The city needs to put a welcome mat out,” he said. “I’m not sure the city was real open to a lot of commercial development. Once they found out how they could use the redevelopment agency to divert money into the general fund, doing commercial development became secondary. We had some attempts ten or twelve years ago with the Outdoor Adventure Center, with lakes and businesses around it. I’m not sure anyone was dedicated to that. At other times, city officials were talking about Lowes [i.e., a hardware store]. What it came down to is if you don’t have the traffic counts you can’t get businesses to look at you seriously. If you don’t have commercial development, you don’t get traffic counts. Stater Bros. took it upon themselves to put in a new store and a new center that held out the promise of bringing in even more. The world went sour and they are having a tough time attracting business to come in there. In the old Stater Bros. center, we have had some companies look at the space there, but it all comes back to the traffic counts aren’t there. There is not an overnight fix. They had thirty years to do it and it wasn’t done.”
The city is still afloat, but struggling to dogpaddle and keep its head above water, the mayor said.
“We will end the current fiscal year with a balanced budget and some reserves, how much we are not sure,” he said. “Next year could be the challenge. Given the redevelopment agency takeaways by the California Department of Finance, we will be short in the general fund. Our reserves cannot fill the hole. We’ve got a budget workshop coming up on April 23, which should give us a clearer picture relative to what the state is doing with the redevelopment agency takeaways.”