Thursday, December 14, 2000
To Pat Bernardi, a resident of Carmel Valley and a dedicated land-use watchdog, things began to look very odd. "I had been getting calls at home," she says, "just a constant litany of people in [Carmel] Valley calling me and saying, ''Pat, we can''t get those documents, the Planning Department won''t send them or they send them at the last minute.''"
For Bernardi, a retired schoolteacher and a lifelong resident of Monterey County, sitting on the sidelines was not an option. Since the late ''70s, she had spent thousands of hours holding developers'' feet to the fire by attending and testifying at Planning Commission and Board of Supervisors meetings, picking apart planning documents word for word, and actively opposing projects she believed were not in keeping with the county''s adopted land use plans.
But Bernardi took a hiatus from her self-appointed policing of the planning process when she returned to full-time teaching in 1985, and when she resumed her activist life in 1997, she found a very different Planning Department. Ironically, it was the time away from the county bureaucracy that afforded her perspective and sharpened her rat-smelling sensibilities. The contrast between the old way and the new way of doing business around the county Planning Department hit her like a Mack truck. "When I walked back in, I went, wham!" she says. "I mean, it was very apparent to me something was amiss."
What was amiss was that some planning staffers seemed too dependent on information provided by the developers, as if they weren''t researching the projects on their own. Bernardi remembers the encounter with a county senior planner that first aroused her suspicions.
"I went in because I needed a map on a project that I was going to do a site visit on," she recalls. "The planner refused to sell me the map. He cannot [legally] refuse to sell me the map. And then he tells me the best thing I can do is to go to the developer to get a copy because the one he has isn''t current."
In 1998, Bernardi attended public hearings on the September Ranch subdivision in which Tony Lombardo, the charming and powerful sole shareholder of the law firm Lombardo & Gilles, coached both county planning staff and county counsel. The experience solidified her misgivings.
"The other telling thing for me was just to watch staff not be able to answer one question without having Tony [Lombardo] whispering in one of the supervising planners'' ears to run up and tell the planner, who had supposedly prepared the document, what they were supposed to say or where they could find [the answer]," she says. "I''m going, ''Oh my goodness, this is not right.''"
A Tale of Two Developments
Meanwhile, in a parallel universe across the county, attorney Jane Haines puzzled over similar mysteries. In 1998, Haines represented two Oak Hills homeowners'' associations in a lawsuit challenging the Moro Cojo housing project in North County, an affordable community to be developed by the county''s Community Housing Improvement System and Planning Association (CHISPA). Lombardo & Gilles represented CHISPA on Moro Cojo. The homeowners disputed an approval condition allowing a water offset--a trade-off in which agricultural land is taken out of production to provide water for the project--in order to supply water to the development.
During litigation, Haines unearthed an enigma. The Board of Supervisors resolution in which Moro Cojo was approved conflicted with the recorded minutes of the meeting in which the resolution was adopted. In the approved motion as it was recorded on tape, the supervisors directed the water offset to come back to the board for final approval at a later date. But the typed resolution (the one that goes on the books) inexplicably lacked that condition, indicating instead that the board had granted final approval for the offset.
Following the suit, Haines observed a county Water Resource Agency staff member exhibiting the same type of behavior Bernardi had noted over at the Planning Department. The court had ordered a public hearing before the Board of Supervisors to determine how many acres of the land providing the water offset had actually been farmed, and a staff report had to be written for the meeting. "I walked in [to the county Water Resources Agency] with about 20 pieces of evidence," Haines says, "and an attorney from Lombardo & Gilles walked in with no evidence, and then the staff person wrote a staff report that never even mentioned the evidence I gave him."
Some light was shed on Haines'' mysteries after the legal battle ended. After the court passed down its ruling, mostly in CHISPA''s favor, Lombardo & Gilles filed a petition asking the court to compel the Oak Hills associations to reimburse CHISPA $78,000 in legal fees. Billing records attached to the motion, filed Nov. 16, 1998 and signed by Tony Lombardo, detail billings to CHISPA for work such as "draft staff report," "prepare resolution/findings," and "revise staff report/resolution"--documents that unbiased county staff members are supposed to have prepared themselves. Finally, the puzzle pieces fit together.
"We all suspected this was happening," Haines says, "but we didn''t have the proof until [Lombardo] attached those billing records."
In February of 1999, Haines shared her discovery. "I went to a meeting with [attorney] Michael Stamp, Pat Bernardi and some Sierra Club people," Haines recalls. "I had just gotten the billing records from Lombardo & Gilles, and I walked into the meeting and said, ''Hey, look at this,'' and Michael Stamp understood the implication of it immediately."
The implication was that attorneys working for Lombardo & Gilles and representing developers were apparently ghostwriting the very documents that county officials depend upon to make decisions.
At the time, Stamp and attorney Fran Farina were involved in a lawsuit over the September Ranch subdivision in Carmel Valley. The lawsuit contended that, unbeknownst to the county supervisors, wording within a Board of Supervisors resolution had been manipulated. "We didn''t know how it had been changed," Stamp says. "All we knew was that the final version didn''t match the earlier version. We didn''t know what it meant."
The changes, consisting of just a few words, made a world of difference. By the addition of the word "net," the developer was handed more water for the project, and another change allowed the developer to pay in-lieu fees instead of providing onsite affordable housing. Attorneys in the cases also discovered evidence that Lombardo & Gilles had drafted a memo from former county counsel Doug Holland to the Board of Supervisor opining that the board was legally obligated to approve the project.
On Sept. 1, 1999, Judge Silver shut down September Ranch by overturning the Board of Supervisors'' approval of the project. A week later, Bernardi, represented by Farina, Stamp and Richard Rosenthal, slapped another lawsuit on the county, this time asking the court to rule on the legality of developers ghostwriting county documents. "Pat had to talk me into doing it," Stamp says. "I couldn''t believe it was as bad as it appeared to be."
Ghost in the Machine
It was. Over the next 10 months, Farina, admiringly dubbed "Ferret" by Bernardi and Stamp, dug up hundreds of county planning, environmental health, and water agency documents ostensibly written by county staff, but in reality either totally or partially authored by employees of Lombardo & Gilles. Farina discovered ghostwritten documents and disks dating back to 1995 for such controversial projects as Canada Woods, September Ranch, the Bernardus Lodge "remodel," and the Silva subdivision, all of which were ultimately approved by decision makers relying on those very documents and the recommendations contained in them.
"We actually got to the point where Mike [Stamp] said, ''Fran, we don''t need anymore [documents],''" Farina says. "What was the point? We had figured out their modus operandi."
It''s normal procedure for developers and their representatives to submit suggested language in hopes that the planner will incorporate it into his or her reports. What''s unusual is how Lombardo & Gilles operated. Using the exact county format, right down to the official county seal, they would write ready-to-use documents saved on disks that were delivered, often by hand, to county planners. Some were accompanied by cover letters, some were not. If a planner so chose, he or she could simply print out the document, sign and date it, and toss the disk.
Once printed and signed, the document was added to the project file as if it was written by the planner, but the disks stayed on planners'' desks or disappeared altogether. Because the county lacks a policy requiring the disks to be kept with the project file, insofar as the official public record is concerned, all traces of the firm''s involvement vanished, except for a cryptic billing code that often appeared on the bottom left-hand corner of the document. To planning commissioners, county supervisors, members of the public, or even to other planning staff members, the documents appeared to be independently drafted by objective planners.
"That''s why it''s so deadly," says Farina. "You have documents where a planner was supposedly giving his or her professional assessment, but that wasn''t happening. So what did the public get? They got the applicants'' work product masquerading as county documents, and the decision makers didn''t know it."
Not all planners used the disks verbatim. Some, insulted, discarded them upon receipt. Others modified them or added to them. However, to overworked planners under the pressure of tight deadlines, the disks dangled like loaves of warm bread in the middle of a famine. From about the mid-''90s on, the county Planning Department was consistently understaffed, but the workload only increased and deadlines remained unforgiving.
"They worked backwards," Stamp says. "[Planning supervisors] said, ''Well, this project has to be approved by the end of ''98, and now it''s July of ''98, and we have to get there by then.'' And you have all these hearings and notice periods, and the planner''s looking at it, and it''s impossible to get to that date without taking the disk."
So What''s the Problem?
Lombardo & Gilles attorneys readily admit that they provided documents to county staff. Under the existing county rules, it wasn''t illegal to do so, and it was up to county staff, they argue, to review the work provided. In fact, Lombardo says, county planners often pro-actively sought his firm''s direction and sent disks to his office for editing.
"There is nothing either immoral or illegal about it," Lombardo says. "In fact, the law allows applicants to submit documents up to and including the EIR [environmental impact report]. It''s the agency''s obligation to independently review the documents."
However, planners testified that Lombardo & Co. liberally applied the pressure. In sworn depositions, planners lamented that they sometimes received numerous calls per day from Lombardo''s office. If calls weren''t returned immediately, Lombardo would often go over planners'' heads and call their supervisors, who in turn would pressure the planners to concentrate on Lombardo''s clients'' projects. Or he would complain about the quality of work produced by the planners, all of which squeezed the planners to abandon good judgment and take the path of least resistance: sign off on the disk.
Lombardo matter-of-factly asserts that he simply did--and still does--what''s necessary to spur along planners consistently behind schedule. The aberration, he says, lies within an understaffed and undertrained Planning Department, not his firm.
"Our job is absolutely to call and harass people to get them to do their jobs, to get them to process the application," he says. "That means making people uncomfortable. The nature of our job is not to make friends."
Meanwhile, word of ghostwritten documents got around to county Chief Administrative Officer Sally Reed, and in March of ''99, she sent out a memo forbidding the use in county documents of language drafted outside of county government walls. However, her policy stopped short of forbidding developers from submitting documents in the county format or from using the county seal. She also reassigned Planning Director Bill Phillips to the position of management services specialist, and Nick Chiulos, chief of planning services, moved to the county''s Local Agency Formation Commission.
Judge Silver took things a few steps further. Though he found no evidence of corruption, he did find a broken system. In August of this year, he passed down a temporary order requiring all outside documents to be stamped as such and forbidding the use of the county seal by non-government types. In September, he issued an additional decision accepting an offer from the Board of Supervisors to adopt a permanent policy addressing ghostwritten documents. At their Dec. 5 meeting, the supervisors directed county staff to draft a policy and present it to them in January.
"The disturbing quality about the items that have now been produced is that they bring into question the integrity of the land-use process," wrote Silver in his Sept. 26 decision. "It is not clear that the involved planners exercised independent judgment in making the recommendations or in giving the advice to the Planning Commission or the Board of Supervisors as opposed to simply passing off documents as their own...Even to the extent that independent decisions were made the ''appearance of independent judgment'' is so tainted that public confidence is justifiably lost."
Even as they bask in the glow of victory, Bernardi and other activists continue to reel in disbelief over a public process gone terribly wrong. "Not one of us had any idea that it was going to be what it turned out to be. Not one of us," Bernardi says. "We knew that there were disks, but we had no idea just how pervasive it was."