Loading...
HomeMy WebLinkAboutPrince, Tim_Ortiz.Treasure.SB.ltr.2026-3-30TOMLINSON & PRINCE Attorneys at Law M. Stanford Tomlinson (1930 - 2021) Founded 1966 255 North D Street, Suite 401, San Bernardino, CA 92401 Mailing Address: P.O. Box 66, San Bernardino, CA 92402 (909) 888-1000 ~ Facsimile (909) 888-6601 www.tprincelaw.com Kenneth W. Nydam (1941 - 2008) March 31, 2026 Stephen G. Larson, Esq. Honorable Mayor and Councilmembers Larson LLP City of San Bernardino Outside Special Legal Counsel 290 North D Street City of San Bernardino San Bernardino, California 92401 Re: Formal Objection to Resolution of Censure — Councilmember Dr. Treasure Ortiz (Resolution No. 2026-035) — April 1, 2026 Public Hearing Dear Mr. Larson, Honorable Mayor and Members of the City Council: This letter is submitted on behalf of certain Seventh Ward residents in formal opposition to the proposed Resolution of Censure (Resolution No. 2026-035) of Councilmember Dr. Treasure Ortiz, Ward 7, set for hearing on April 1, 2026. For the reasons set forth herein, the censure proceeding is procedurally defective, legally unsupported, constitutionally infirm, and tainted by an irreconcilable conflict of interest at its core. The City Council is respectfully urged to reject the Resolution in its entirety. I. LARSON LLP'S ROLE IN THIS PROCEEDING CONSTITUTES AN IRRECONCILABLE CONFLICT OF INTEREST The threshold defect in this proceeding is the identity of its author. The staff report presented to this Council — including factual findings, legal characterizations, and recommendations — was prepared by Larson LLP. Yet Larson LLP was engaged by the City specifically to defend against Councilmember Ortiz's pending tort claims. Larson LLP is, in the most literal legal sense, Councilmember Ortiz's adversary in active litigation. The conflict of interest in this proceeding also extends to a prior attorney-client relationship between Stephen G. Larson personally and Chief Darren Goodman — a relationship that is directly material to the censure proceeding and to the underlying federal litigation. In or around 2020, Larson personally represented Chief Goodman when Goodman was suspended from his position as Chief of Police of the City of Upland. Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 2 Larson wrote to the Upland City Council on Goodman’s behalf, secured Goodman’s reinstatement, and made public statements in Goodman’s defense. This attorney-client relationship is publicly documented on Larson LLP’s own website. Goodman subsequently left Upland and became Chief of Police for San Bernardino in June 2022. Chief Goodman is a named defendant in the federal civil rights lawsuit, Case No. 2:25-cv-10650, C.D. Cal., that Larson LLP has been retained to defend on behalf of the City. The federal complaint alleges that Goodman orchestrated the illegal CLETS database access used against Councilmember Ortiz, that he initially acknowledged the unlawful searches in August 2024 — including confirming a DOJ audit finding and stating he would have fired the responsible detective — and that he subsequently reversed those admissions. The censure report relies on Goodman’s post-reversal denial while systematically suppressing his documented prior admissions. California Rules of Professional Conduct, Rule 1.9, prohibits a lawyer from representing a person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of a former client, without informed written consent. The questions that must be answered before this proceeding continues are these: Did Larson LLP obtain Chief Goodman’s informed written consent before agreeing to represent the City in litigation in which Goodman is a named defendant? Did Larson LLP disclose the prior representation to the City of San Bernardino upon being retained? And critically — did Goodman’s reversal of his prior documented admissions occur in the context of or following Larson LLP’s renewed involvement in matters affecting Goodman’s institutional position? The complete conflict picture now before this Council is as follows: Larson LLP is the City’s litigation counsel against Councilmember Ortiz’s federal civil rights claims. Larson LLP previously represented Chief Goodman personally. Goodman is a named defendant in the federal case Larson LLP is defending. The censure report drafted by Larson LLP uses Goodman’s post-reversal position as a factual predicate while suppressing Goodman’s prior admissions — admissions that are now central evidence in the federal case. This is not a conflict that can be waived by disclosure. It is a conflict that disqualifies Larson LLP from any further role in any proceeding adverse to Council- member Ortiz. The Council is being asked to adopt as its own institutional findings a document written by opposing litigation counsel. This is not a staff report in any ordinary sense. It Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 3 is a litigation brief dressed in the formatting of a government memorandum. Every "finding" in this document advances Larson LLP's litigation interests. Every characterization of Councilmember Ortiz's conduct serves to discredit her as an adverse party in ongoing civil proceedings. No court, no administrative body, no public entity and no legislative body operating with integrity would permit the adverse party's counsel to serve simultaneously as the finder of fact, the drafter of charges, and the recommending authority in a quasi-adjudicatory proceeding. The conflict is not technical — it is structural and complete. The City Council is urged to recognize that by proceeding on this basis, it does not act as an independent deliberative body. It acts as a rubber stamp for its litigation counsel's strategy against an elected official. This posture exposes the City to substantial legal liability and calls into serious question the good faith of this entire proceeding. II. THE PROCEEDING IS CONSTITUTIONALLY DEFECTIVE FOR INADEQUATE NOTICE The staff report acknowledges that notice was provided to Councilmember Ortiz on March 24, 2026 — eight calendar days before the April 1, 2026 hearing date. This notice period is constitutionally inadequate given the gravity and breadth of the charges now before the Council. Where a public official faces formal censure — a proceeding that this resolution acknowledges may result in removal from committee positions, deprivation of office space, and a formal demand for resignation — due process requires meaningful notice and a genuine opportunity to prepare a defense. Eight days' notice of a proceeding involving nine distinct charges, prepared by experienced outside litigation counsel with access to the full resources of the City, does not satisfy this constitutional minimum. Mathews v. Eldridge, 424 U.S. 319 (1976), establishes the balancing framework governing procedural due process in quasi-adjudicatory proceedings. Applied here, the private interests at stake are substantial — the professional reputation, official standing, and effective functioning of a duly elected representative, not to mention the interests of the tens of thousands of Seventh Ward citizens who stand to lose their democratically elected voice and representation. The risk of erroneous deprivation given the abbreviated notice period is high. The governmental interest in proceeding on this chosen timeline is negligible. Councilmember Ortiz and her constituents were not provided adequate notice Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 4 This proceeding is constitutionally defective and must be terminated. This objection is made on the record and is expressly preserved for all subsequent legal proceedings. III. THE RESOLUTION'S PROPOSED REMEDIES EXCEED THE LAWFUL SCOPE OF CENSURE A censure, as the staff report itself acknowledges, is "an official reprimand or condemnation [that] does not levy a fine, suspension, or other penalty." (Black's Law Dictionary, 10th ed. 2014.) The legal authority cited in the report — Braun v. City of Taft (1984) 154 Cal.App.3d 332 — supports only this limited function. Resolution No. 2026-035, however, proposes to go dramatically further. It proposes to: • Remove Councilmember Ortiz from all appointed City offices, committee positions, and assignments; • Render her ineligible for those same positions for a period of years yet to be determined; • Strip her of her dedicated City Hall office for a period of years; and • Formally request that she resign immediately from her elected office. These measures bear no resemblance to a censure. They constitute punitive sanctions — including the deprivation of resources and standing integral to the exercise of her elected duties — that are not authorized by any statute, code provision, or applicable case law governing censure proceedings. Most critically: formally requesting the resignation of a duly elected official is not a censure remedy — it is an attempted constructive removal. Councilmember Ortiz was elected to represent the residents of Ward 7. The City Council lacks legal authority to remove her from office through the censure mechanism, and a formal demand for resignation as part of a censure resolution is a transparent attempt to accomplish through political pressure what the law does not permit through direct action. The Council is advised that proceeding with these unauthorized remedies substantially increases the City's legal exposure and will be challenged on those grounds. Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 5 IV. THE CHARGES ARE LEGALLY INSUFFICIENT, FACTUALLY CONTESTED, AND CONSTITUTIONALLY PROTECTED A. The "Allegations Against a City Employee" Charge Ignores the Police Chief's Own Contradictory Conduct The staff report asserts that Councilmember Ortiz "abrogated her duty of care" by making allegations against a City employee that "upon prudent inquiry, would have been readily discredited." This characterization is false and deliberately incomplete. The documented record reflects that Police Chief Goodman himself made statements that supported Councilmember Ortiz's account before later reversing his position under institutional pressure. These admissions are documented in the federal civil rights complaint, Case No. 2:25-cv-10650, C.D. Cal., in Goodman’s own words. On August 14, 2024, Chief Goodman called Councilmember Ortiz and reported that a Department of Justice CLETS audit confirmed the unlawful use of the CLETS system to run her, that there was “no justifiable reason” to run her, and that he would “fire [Detective Desrochers] immediately” if he still worked there. On August 29, 2024, Goodman reaffirmed these statements. He further stated: “I want to nip this in the bud and quite frankly want to make an example of Desrochers whether he is retired or not to send a message to anybody else that’s playing these games.” He also confirmed that he had notified the DA’s office and intended to pursue criminal charges against Desrochers. These statements were made with knowledge that the conversation was being recorded. The federal complaint documents them verbatim in paragraphs 25 through 31. Goodman subsequently reversed all of these positions and now denies the CLETS intrusions occurred. The censure report — authored by Larson LLP, who previously represented Goodman personally and now represents the City in litigation where Goodman’s reversal is a central contested fact — relies exclusively on Goodman’s post-reversal denial while making no reference to his documented prior admissions. Selecting only the evidence that serves the litigation narrative while suppressing documented contradictory evidence from the same source does not satisfy the standard of candor this Council is entitled to expect from its outside counsel. Councilmember Ortiz relied upon representations made by the City's own Police Chief. The claim that her allegations were "readily discreditable" cannot be reconciled with the Chief's own documented reversal. If the conduct was so obviously false, why did Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 6 the Chief's own initial statements align with her account? This charge is constructed by selecting only the evidence that serves Larson LLP's litigation narrative and is facially invalid. B. The Failure to Disclose Prior “Arrests” Is Not a Legal Violation The staff report asserts that Councilmember Ortiz acted “with an absence of transparency” by failing to disclose two prior “arrests” during her candidacy. This charge is not merely legally unsupported — it is factually fabricated. The word “arrests” in this staff report is a deliberate misrepresentation of the underlying facts, and the Council should understand exactly what Larson LLP chose to call an “arrest.” The factual record is as follows: In both instances referenced by Larson LLP, law enforcement was called to a scene. Councilmember Ortiz was detained on each occasion. She was not arrested. She was not cited. She was not charged with any crime — not a felony, not a misdemeanor, not even an infraction. No criminal proceeding of any kind was initiated against her arising from either call for service. She was briefly detained while cooperating with the investigation of a private matter, and she was released without arrest or consequence. Under California law, a detention — a temporary investigative stop — is categorically distinct from an arrest. It generates no criminal record, no rap sheet entry, and no disclosure obligation of any kind. Councilmember Ortiz has no criminal record of any kind. She has successfully passed multiple comprehensive background checks, including federal passport background screening and the California Department of Justice LiveScan fingerprinting required for all credentialed educators — one of the most rigorous background check processes available under California law. The California DOJ found nothing. The federal government found nothing. Because there is nothing to find. Larson LLP has taken two routine detentions where Councilmember Ortiz was released without arrest, citation, or charge — calls for service that generated no criminal record of any kind — and presented them to this Council as undisclosed “arrests” that reflect moral turpitude requiring censure. Larson LLP had access to the CLETS data. As experienced counsel they knew she was detained, not arrested. Notwithstanding their knowledge and experience they made a deliberate choice to use the word “arrest.” That is not zealous advocacy; it is a deliberate misrepresentation of fact to a legislative body. The Council is entitled to know what Larson LLP actually means when it says “arrests,” and Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 7 Councilmembers must draw their own conclusions about the reliability of every other factual assertion in a staff report written by the same firm. There is no legal basis — none — for the proposition that a candidate for elected office must disclose law enforcement stops or detentions that resulted in no arrest, no citation, and no charge. A detention is not an arrest. It is a temporary investigative stop authorized by Terry v. Ohio, 392 U.S. 1 (1968), that carries no criminal consequences when it results in release without further action. California Labor Code section 432.7 and the public policy embodied throughout California’s criminal records framework confirm that even arrests without conviction may not be used to disadvantage individuals — a fortiori, detentions that never became arrests carry no disclosure obligation whatsoever. The staff report cites no Municipal Code provision, no Charter section, no California statute, and no case authority requiring a candidate to disclose detention-and-release contacts. The Council is requested to identify the legal provision allegedly violated. It cannot be done, because no such provision exists. C. The Tort Claim and Lawsuit Are Constitutionally Protected Petitioning Activity The staff report characterizes Councilmember Ortiz's filing of a tort claim and lawsuit against the City as acting "in furtherance of her own self-interests" and in violation of her fiduciary duty. This position is legally untenable. The right to petition the government for redress — including through litigation — is protected by the First Amendment to the United States Constitution and Article I, Section 3 of the California Constitution. Using a pending, unresolved civil claim as the basis for institutional condemnation of the claimant prejudges litigation the City has not won. The tort claim has not been adjudicated as false. No court has found that Councilmember Ortiz's claims are meritless. The City's litigation counsel is simply asserting, in a document designed to be adopted as a council resolution, that her protected legal conduct constitutes misconduct. This is a profound misuse of the censure mechanism. D. The Use of a City Office for Press Meetings Is Not a Policy Violation The staff report alleges that Councilmember Ortiz misused City property by meeting with a journalist in her City Hall office to discuss her personal claims against the City. No Municipal Code provision, City policy, or prior council action is cited that prohibits a councilmember from meeting with press in her official office. Elected Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 8 officials routinely meet with journalists, constituents, advocates, and members of the public from their official offices. The selective application of an unarticulated "policy" to this Councilmember alone, in the context of active litigation, is discriminatory enforcement that further calls into question the good faith of this proceeding. E. The "Illegally Recorded" Communications Charge Rests on an Unproven Legal Conclusion The staff report asserts that Councilmember Ortiz "disseminated illegally recorded confidential communications." "Illegally recorded" is a legal conclusion — one that has not been established by any court, any criminal proceeding, or any administrative determination. Under California Penal Code section 632, a recording is not illegal unless it is proven there is an "objectively reasonable expectation" of privacy. It generally excludes public places involving circumstances where conversations can easily be overheard. It excludes circumstances such as the meeting herein at DJs Restaurant with third party Kimberly Calvin present where guests are literally sitting three feet apart. The parties had no expectation of privacy. Any determination that the recordings herein are somehow unlawful is a legal issue that has not been adjudicated. The staff report treats Larson LLP's litigation characterization as an established fact. It is not. No conviction has been obtained. Adopting this charge in a censure resolution would constitute a finding that has not been made by any court competent to make it. F. Larson LLP Has Introduced Illegally Obtained CLETS Data Into a Public Proceeding — and Used It to Fabricate an “Arrest” Record That Does Not Exist This section must be read in conjunction with Section II-B above, because the two charges are, in fact, a single coordinated act. The staff report simultaneously (1) accuses Councilmember Ortiz of improperly accessing CLETS, and (2) accuses her of concealing “arrests” — “arrests” that the record demonstrates do not exist as a matter of law. The Council must now ask: how does Larson LLP know anything about what CLETS contains regarding Councilmember Ortiz? The answer to that question implicates serious violations of state and federal law. CLETS — the California Law Enforcement Telecommunications System — is a restricted-access criminal justice database governed by California Penal Code sections Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 9 11105 and 11142, and by the California Department of Justice CLETS Policies, Practices, and Procedures. Access is strictly limited to authorized criminal justice agencies and their authorized personnel. Unauthorized access, unauthorized use, and unauthorized dissemination of CLETS data are criminal offenses. California Penal Code section 11142 makes it a crime for any person to use information obtained from CLETS for any purpose other than the official law enforcement purpose for which it was obtained. Dissemination of such information to unauthorized third parties — including private attorneys — is independently prohibited. Larson LLP is a private law firm. It has no CLETS access. For Larson LLP to have characterized the contents of a CLETS record regarding Councilmember Ortiz in this staff report, someone with authorized CLETS access — almost certainly personnel within the San Bernardino Police Department — must have queried the CLETS system on Councilmember Ortiz, obtained the result, and transmitted that information to Larson LLP. Every step of that chain is a potential criminal act and a violation of DOJ CLETS policy. The fact that Larson LLP then incorporated that data into a public staff report — thereby publicly disseminating restricted criminal justice database information about a sitting elected official, in the context of litigation against her — compounds the violation. What makes this worse is what Larson LLP did with the data: they misrepresented it. A CLETS record reflecting a detention and release — with no arrest, no booking, no citation, no charge — is not an arrest record. Larson LLP had the CLETS data in hand. They knew the distinction between a detention and an arrest. Every law enforcement officer knows it. Every attorney knows it. They chose to call it an “arrest” in a public staff report anyway. Councilmember Ortiz has no arrest, citation, or charge. She has no criminal record. Yet this staff report presents detention-and-release contacts as “arrests” warranting censure of an elected official. That is not a legal argument. That is the deliberate misuse of improperly obtained law enforcement database information to defame a sitting councilmember in a public proceeding, with full knowledge that the characterization was false. The identity of the author of this staff report makes the misrepresentation more serious, not less. Stephen G. Larson is not a general practitioner unfamiliar with criminal procedure. He is a former United States District Court Judge appointed to the federal bench by President George W. Bush. As an Article III federal judge, he presided over criminal trials. He ruled on suppression motions. He instructed juries on the elements of criminal offenses. He applied Fourth Amendment doctrine — including the foundational Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 10 distinction between an investigative detention under Terry v. Ohio and a formal arrest — as a matter of routine judicial function. The detention-versus-arrest distinction is not an obscure legal nuance. It is among the most elementary principles of American criminal procedure, taught in the first weeks of every law school’s constitutional law curriculum. Judge Larson did not make an error. A former federal judge does not accidentally call a detention an arrest. He knows precisely what an arrest is. He knows precisely what a detention is. He knows precisely that a detention resulting in release without charge generates no criminal record and carries no disclosure obligation under any provision of California or federal law. He used the word “arrest” anyway — in a public document, submitted to a legislative body, about a sitting elected official engaged in active litigation against his client. The only reasonable inference available to this Council is that the word “arrest” was chosen deliberately, with full knowledge of its falsity, because it would cause maximum reputational damage to Councilmember Ortiz. That inference, if correct, does not describe a litigation strategy. It describes conduct subject to professional discipline under the California Rules of Professional Conduct, Rule 3.3 (candor toward the tribunal) and Rule 8.4 (misconduct involving dishonesty, fraud, deceit, or misrepresentation). This Council should understand that if it adopts findings drafted by counsel operating under these circumstances, it does not lend its institutional authority to an accountability process. It lends it to a smear. The City Council is formally placed on notice of the following: the California Department of Justice Bureau of Criminal Information and Analysis may be requested to conduct a full audit of all CLETS queries run on Ortiz, including the agency, the terminal operator, the stated purpose, and the subsequent dissemination of any results. The FBI’s Civil Rights Division and the U.S. Attorney’s Office for the Central District of California may also review whether the use of restricted federal and state criminal justice databases to target a sitting elected official in the context of retaliatory civil litigation constitutes a violation of 18 U.S.C. § 1030 (Computer Fraud and Abuse Act) and 42 U.S.C. § 1983 (deprivation of civil rights under color of law). Every member of this Council who votes to adopt a resolution premised on illegally obtained and deliberately mischaracterized CLETS data does so with full notice of these facts before the vote was cast. That is not a position any member of this body should want to occupy. Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 11 V. THE CROSS-EXAMINATION BAR FURTHER UNDERMINES THE INTEGRITY OF THIS PROCEEDING The staff report acknowledges that "formal rules of evidence do not apply, including the right to cross examination." (Citing Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1809.) This means that every factual allegation in this document — authored by Councilmember Ortiz's litigation adversary — will be presented to this Council as if established, without any opportunity for cross-examination of the witnesses who allegedly support those allegations, and without the application of any evidentiary standards. The combination of: (a) no evidentiary standards, (b) no cross-examination, (c) charges drafted by adverse litigation counsel, and (d) abbreviated notice, produces a proceeding that falls so far below the minimum requirements of fairness that its product — whatever the Council decides — will be legally and reputationally untenable. All constitutional and statutory objections arising from this procedural framework are preserved. VI. CONCLUSION AND FORMAL REQUESTS The censure proceeding before this Council today, as authored by her litigation adversary, does not reflect legitimate institutional accountability. It reflects coordinated retaliation against a sitting elected official for exercising constitutionally protected rights — the precise conduct alleged in the federal civil rights complaint pending before the United States District Court for the Central District of California. For all of the foregoing reasons, Councilmember Ortiz respectfully requests that the City Council: i. Reject Resolution No. 2026-035 in its entirety; ii. Disqualify Larson LLP from further involvement in any proceeding adverse to Councilmember Ortiz while simultaneously representing the City in litigation against her; iii. Strike from any resolution the unauthorized remedies of committee removal, office deprivation, and the request for resignation, as these exceed the lawful scope of a censure proceeding; iv. Remove the letter for censure from the front page of the City’s website and all other efforts to defame her, tarnish her reputation and bias a jury, or, should you refuse this request, publish this letter alongside the letter of censure; and Stephen G. Larson, Esq., Honorable Mayor and Councilmembers March 31, 2026 Page 12 v. Recognize that the adoption of this Resolution, under these circumstances, does not represent institutional accountability — it represents the weaponization of the censure power against an elected official who had the temerity to exercise her constitutional right to seek legal redress against the City. The constituents of Ward 7 who elected Councilmember Ortiz have independent cognizable legal claims arising from this proceeding. A censure resolution that strips their duly elected representative of committee positions, removes her City Hall office, and formally demands her resignation impairs the constituents’ right to effective political representation and may constitute infringement on their First Amendment right to political association and their Fourteenth Amendment right to have their vote given effect. See Reynolds v. Sims, 377 U.S. 533 (1964); Elrod v. Burns, 427 U.S. 347 (1976). All rights and claims are expressly reserved. The residents of Ward 7 elected Dr. Treasure Ortiz. No resolution drafted by the City's litigation counsel, adopted on eight days' notice, without evidentiary standards or cross-examination, can undo that electoral mandate or legitimately represent the consider- ed judgment of this Council. Respectfully submitted, TOMLINSON & PRINCE Timothy P. Prince TPP/lg cc: City Clerk, City of San Bernardino; City Attorney, City of San Bernardino; California Attorney General Rob Bonta — California DOJ Bureau of Criminal Information and Analysis (CLETS Audit Request); FBI Los Angeles Field Office — Civil Rights Division; U.S. Attorney’s Office, Central District of California; California State Bar — Office of Chief Trial Counsel (re: attorney misconduct); FBI Los Angeles Field Office; San Bernardino County Office of the District Attorney--Public Integrity Unit; United States Department of Justice Civil Rights Division