Industry won’t be forced to share private discussions at core of corruption case – San Bernardino Sun

The City of Industry will not have to disclose the closed-session discussions its City Council had regarding a $20 million solar project now at the forefront of a criminal corruption case, a Superior Court judge ruled Wednesday, March 23.

Though Industry could waive the confidentiality voluntarily at any time, Judge Michael Pastor determined the city is within its legal right to refuse to do so, even if the decision would hinder the prosecution of individuals accused of bilking the city. Pastor’s ruling will allow Industry’s attorneys to continue to object and potentially block certain testimony from witnesses who attended such private meetings.

Industry’s attorney, Vicki Podberesky, and her partner, Mary Carter Andrues, have repeatedly cited attorney-client privilege and closed-session privilege to shut down questioning during a preliminary hearing for former City Manager Paul Philips. According to Podberesky, the city does not plan to waive attorney-client privilege protections in any instance, including for Anthony Bouza, an attorney who negotiated the solar proposal on Industry’s behalf before it was discovered he is allegedly owed $1.5 million by the project’s developer.

Bouza was charged alongside Philips and two others in the criminal case.

Before his ruling, Pastor noted that the city’s reluctance to waive such protections is seemingly at odds with its stance that Industry is the victim in this case.

“It does raise one’s eyebrows to claim you are representing a victim and, at the same time, declining to waive any privilege to help that victim,” Pastor said to Podberesky.

Still, the law is “absolute” regarding the privileges, Pastor said, even if such protections are “unquestionably frustrating” for prosecutors. Though Pastor ruled closed-session privileges could be asserted broadly, objections related to attorney-client privilege will still be determined on a “question-by-question” basis, he said.

Podberesky declined to say why Industry’s City Council has decided not to waive either privilege.

Philips is charged with a single count of misappropriation of public funds. Prosecutors have not directly spelled out the reason for the charge against Philips, but have described him as playing a part in a larger uncharged conspiracy that resulted in the loss of the city’s funds.

Under Philip’s leadership, Industry entered into a lease agreement with San Gabriel Valley Water and Power, a company run by developer William Barkett, to develop a proposal for a 450-megawatt solar farm on Tres Hermanos Ranch, a slice of undeveloped rolling hills and pastures on the edge of Los Angeles, San Bernardino and Orange counties.

The city invested $20 million toward the project before pulling the plug in 2018. The city’s attorneys and prosecutors, in separate civil and criminal cases, now allege Barkett and former state Sen. Frank Hill manipulated the city into paying the funds through fraud, including by altering and inflating invoices for the work performed on the project. All told, it is believed less than half of the $20 million went toward the project. The remaining funds were used on personal items, including a $2 million wedding in France for Barkett’s daughter, according to court filings.

Both Philips’ defense attorney, Joe Weimortz, and the prosecution, led by Deputy District Attorney Ana Lopez, have faced roadblocks when asking questions about the closed sessions where the solar project was approved in secret in 2016. For the prosecution, knowing what was — or was not — decided behind closed doors could illuminate whether Philips had the authority to make payments to the developer. Only about $11.5 million of the $20 million disbursed appeared on warrant registers approved by the City Council.

Lopez contends investigators have struggled to nail down when the City Council made certain approvals, if ever, because of a lack of details on the city’s public agendas. City councils typically must discuss and vote on matters in the public eye. However, state law allows “closed-session” meetings for limited topics, such as pending litigation or real estate negotiations.

Lopez argued that only one agenda appears to have the proper justification for a closed session about the Tres Hermanos property, though the lease agreement for the property and several amendments were all reportedly approved in the closed meetings throughout 2016 and early 2017. Those documents were all signed by Philips, but prosecutors have said its unclear what the City Council signed off on because none of decision-making was done in public until the City Council ratified the lease and amendments publicly in October 2017.

“If we don’t have the information to lay the foundation, it’s because they haven’t agendized anything,” Lopez said.

Lopez accused the city of hiring lawyers for nonlegal roles to “cloak” them in attorney-client privilege protections. She warned that a ruling that allowed the city to assert such protections broadly would put “all cities in peril” and make it harder to prosecute corruption cases in the future.

Podberesky said the district attorney did not have the right to such information. She denied that Lopez’s allegations had merit and challenged the prosecutor to back up a claim that the city had seemingly violated the Ralph M. Brown Act, which governs the rules for public and closed-session meetings.

“She’s going to have to make her case with evidence that was not presented in closed session,” Podberesky said in her argument. “This isn’t a fishing expedition, your honor, it’s a preliminary hearing.”

Meanwhile, Weimortz has argued the city’s efforts to block questioning about the matter could prevent Philips, if he takes the stand, from presenting information learned in closed session that could potentially exonerate him. Pastor acknowledged the possibility, but said he wouldn’t rule on a hypothetical situation at this time.

The preliminary hearing for Philips, which began in February, is expected to continue into at least April. The other three defendants are set to appear for their separate preliminary hearing in May.

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