Attorney says agencies “utterly failed in their duties” to protect 18-month-old girl abused by parents also named in suit
Antioch childcare facility, Pittsburg pediatrician also named
CONTENT WARNING: Information included may be disturbing to some individuals
San Francisco, August 20, 2024 — A federal civil rights lawsuit was filed in the beating death of an 18-month-old child in Antioch, alleging that a litany of individuals and agencies charged with protecting the tiny girl utterly failed in their duties and led directly to her death as the result of trauma inflicted by her biological parents.
The case, filed last week in Federal District Court on behalf of the two older siblings of the toddler, names the following defendants as negligently responsible for her horrific death: the City of Antioch, Antioch Police Department, Contra Costa Child Protective Services, Contra Costa County Regional Health Foundation, and a childcare facility, The Learning Center (actually named, The Learning Experience – see below), as well as the toddler’s biological parents, Jessika Fulcher and Worren Young, Sr.
The child was removed from her parent’s custody within weeks of her birth in February 2021 because she was in danger of neglect and abuse. Yet, over the next 16 months, the very people and institutions who were supposed to protect the toddler and her siblings failed to report obvious signs of abuse and/or failed to take action to prevent further trauma to the girl.
The child died August 26, 2022, from trauma so severe that it severed her pancreas and caused bleeding in her brain, according to doctors and the lawsuit.
The lawsuit seeks unspecified monetary damages, including punitive damages against the agencies and individuals named as responsible in the legal action.
“This child–who was still learning to walk–was brutally tortured and died a horrific death, all because the entire system that was supposed to protect her failed this innocent 18-month-old child,” said Brett Schreiber, attorney for the plaintiffs and partner at Singleton Schreiber law firm. “While her parents committed the physical abuse that killed her, their abuse was entirely enabled and abetted by social workers, police, hospitals and day care centers who should have stopped them.”
A juvenile court judge removed the toddler from the custody of her parents in March 2021, shortly after her birth. When the child was born, both she and her mother had methamphetamines in their systems. In addition, both parents had outstanding warrants in Georgia. The children were placed in foster care.
Within weeks of the judge’s decision, however, Contra Costa County Child Protective Services (CPS) began a process intended to lead to reuniting the children with the parents, beginning with a “case plan” requiring close supervision of the parents. The case plan required the parents to submit to regular drug testing. The suit alleges that they missed half these mandated tests and failed many that they took.
A doctor at Pittsburg Health Center further noted injuries on the toddler, but neither the doctor nor the hospital notified CPS, and CPS never requested the hospital’s records.
Nonetheless, CPS soon allowed overnight visitations for the children with the parents, and by September 2021 enabled the parents to regain custody by concealing these and other facts from the judge.
The toddler returned to a household in turmoil, with Antioch police visiting the home at least three times in 2022. Yet the children remained in the home and no referral to CPS was made, even though the father was finally arrested for domestic violence and battery. The child’s daycare center, The Learning Center in Antioch, also alerted the mother regarding significant bruising on the toddler yet failed to make a mandated referral to CPS.
On August 25, 2022, Antioch Police Department officers and paramedics were called to the child’s home by her mother who reported that the girl was having trouble breathing. The girl was rushed to the hospital where doctors discovered she was the victim of severe, intentional injuries.
Her parents left the hospital during the night saying they were going out to smoke, but never returned. The girl died the following morning; a juvenile court hearing in April 2023 concluded that one or both parents were responsible for the fatal injuries.
“This was a complete dereliction of duty that resulted in the death of one young child and the lifelong loss and trauma for two others,” Schreiber said. “On behalf of those siblings, we are asking the court not only to compensate them for the life-long emotional scarring they will suffer, but also to punish those who failed to prevent this horrible tragedy so that it never happens again.”
Antioch City Attorney Thomas L. Smith and Interim Antioch Police Chief Brian Addington were asked on Tuesday afternoon if they had any comment about the lawsuit. Addington was also asked if lawsuits naming the police department are received by the chief or if they are handled by the city attorney’s office. Neither responded by publication time Wednesday evening.
Asked if the County had any comment on the lawsuit, Tish Gallegos, Community Relations and Media for the Contra Costa County Employment & Human Services Department responded, “The County has not been served with the lawsuit, therefore has no comment at this time.”
Asked whom at the County was served with the lawsuit, Sam Singer, of Singer Associates Public Relations representing Singleton Schreiber said, “I know the lawsuit was filed but it may not have been served, yet.”
Provided with that information and asked how Sullivan, Lewis and Ponnaluri are related to the lawsuit, Singer shared details from the lawsuit, including: “over the next year, from March 2021 to April 2022, during the pendency of the dependency action, CPS workers—Defendants in this action— abysmally failed to protect O.Y. and W.Y. Defendants Colleen Sullivan and Does 1-10, CPS employees, repeatedly misled and deceived the juvenile court. They represented that Defendant Parents were complying with the court’s orders documented in a ‘case plan,’ when, in fact, Defendant Parents were violating the terms of the case plan.”
Singer also shared, “defendant Flynne Lewis was a pediatrician practicing medicine at the Pittsburg Health Center who was responsible for the health, safety, and welfare of Decedent O.Y. and Plaintiff W.Y. Defendant Lewis and staff working at the Pittsburg Health Center noted and documented signs of abuse and neglect of O.Y., but failed to report such information to CPS or any law enforcement agency.”
Finally, Singer provided details about the correct name for the business and its owner which reads, “At all relevant times, Defendant The Learning Experience was a daycare center located at 4831 Lone Tree Way, Antioch, CA 94531 which was owned and operated by Defendant Raji Ponnaluri.”
Singleton Schreiberis a client-centered law firm, specializing in mass torts/multi-district litigation, fire litigation, personal injury/wrongful death, civil rights, environmental law, and sexual abuse/trafficking. Over the last decade, the firm has recovered more than $2.5 billion for clients who have been harmed and sought justice. The firm also has the largest fire litigation practice in the country, having represented over 26,000 victims of wildfire, most notably serving plaintiffs in litigation related to the 2023 Maui wildfires, the Colorado Marshall wildfire, the Washington Gray wildfire, and others.
Company agrees to conditions resolving competitive impacts related to changes in ownership involving retail pharmacy outlets
OAKLAND — California Attorney General Rob Bonta today announced a settlement with Rite Aid Corporation (Rite Aid) operating as an injunction to enable him to review changes of ownership involving their retail pharmacy outlets statewide. Additionally, the settlement includes injunctive conditions that resolve competition-related concerns to ensure remaining Rite Aid pharmacies provide necessary medication and healthcare services to Californians, specifically those who may rely on Medi-Cal and Medicare, and protect workers at stores that are sold or closed. Today’s settlement reflects the Attorney General’s efforts to prevent the continued growth of pharmacy deserts, which disproportionately impact low-income individuals, the elderly, and people of color, all of whom are also patients of Rite Aid. The settlement was reached under Assembly Bill (AB) 853.
“Pharmacies are often the most accessible healthcare providers, offering vital services for the well-being of individuals and families. Without them in our communities, Californians could face significant barriers in managing chronic conditions, receiving timely medications, and accessing preventative care,” said Attorney General Bonta. “Today, with AB 853 and conditions set by my office, Californians who rely on Rite Aid pharmacies can continue accessing their medications and essential healthcare services they need to live healthy and fulfilling lives.”
Rite Aid filed for Chapter 11 bankruptcy and began closing nearly 550 stores nationwide since October 2023. California experienced the closure of more than 100 stores statewide; however, approximately 71% of all stores in California have remained open throughout the bankruptcy and with one exception in San Diego, there were two or more competitive alternatives close by for the closed stores. This June, Rite Aid’s bankruptcy restructuring plan was approved by the United States Bankruptcy Court for the District of New Jersey, which turns over control of the company to a group of its lenders.
Under the settlement and AB 853, Rite Aid agrees to the following conditions for the next five years:
Use commercially reasonable efforts to maintain the remaining Rite Aid stores, as well as all required licenses.
Provide 90-day notice of sale or closure of remaining Rite Aid stores.
Continue participation in Medi-Cal and Medicare if commercially reasonable.
Provide financial assistance to patients if commercially reasonable to do so.
Continue free delivery services to patients who were receiving these services from a closed store in San Diego.
Ensure compliance with state staffing levels.
Maintain hiring list for all employees from stores that close going forward for preferential hiring at other Rite-Aid stores.
Use commercially reasonable efforts to pay retirement contributions if collective bargaining agreements require such payments.
Use commercially reasonable efforts to abstain from contesting unemployment for individuals who are laid off as a result of the sale or closure of Rite Aid stores if no nearby Rite Aid store offers employment.
Comply with nondiscrimination rules in the provision of healthcare services and to commercially reasonable efforts to provide financial assistance to patients.
The California Department of Justice’s Healthcare Rights and Access Section (HRA) works proactively to increase and protect the affordability, accessibility, and quality of healthcare in California. HRA’s attorneys monitor and contribute to various areas of the Attorney General’s healthcare work, including nonprofit healthcare transactions; consumer rights; anticompetitive consolidation in the healthcare market; anticompetitive drug pricing; privacy issues; civil rights, such as reproductive rights and LGBTQ healthcare-related rights; and public health work on tobacco, e-cigarettes, and other products.
By Anna Mickelsen, Communications Intern, Contra Costa Senior Legal Services
On Thursday, August 22nd, community members across the county will gather for the non-profit Contra Costa Senior Legal Services’ (CCSLS) Summer Soirée & Symposium. For more than 40 years, CCSLS has served older adults by providing free legal aid to those aged 60+ who need it. Attorneys from CCSLS help fight evictions to preserve housing, prevent elder abuse, remedy fraud, assist with advance planning documents, and more.
Source: CC Senior Legal Services
The Summer Soirée & Symposium is not only an opportunity to support the organization, but also will feature a panel discussion on the implications of an aging society, lively entertainment, and delicious refreshments. CCSLS also will present the Honorable Virginia George with the First Annual Elder Justice Award. A Bay Area native, Justice George is an upstanding figure in the community, and a powerful voice for Elder Law and the rights of older adults in Contra Costa County. The Elder Justice Award was created to honor Justice George and her service.
Moving forward, CCSLS will continue to present the Virginia George Elder Justice Award to other professionals who work tirelessly to support the well-being of older adults in the county. Tickets are still available for those interested in attending this upcoming event, and for more information or to purchase a ticket, click, here Summer Soirée and Symposium 2024. All proceeds support CCSLS.
About CCSLS
Contra Costa Senior Legal Services (CCSLS) is a private, nonprofit agency that has been providing free legal services to older residents aged 60 or older in the County since 1976. Thousands of seniors have benefited from these services which have enabled them to stay in their homes, to become eligible for and to retain public benefits, to recover real and personal property wrongly taken from them, and to obtain relief from physical, financial, and emotional abuse.
CCSLS seeks to provide the broadest possible access to its services. It prioritizes those areas of law relevant to the needs of older residents of the County, especially those not otherwise addressed by other legal services programs. CCSLS regularly provides individual assistance to over 1,000 clients per year and provides outreach and training to hundreds more.
The Contra Costa County Civil Grand Jury issued a report to the Antioch City Council following the Contra Costa DA’s letter to the acting city manager earlier this year about possible state open meeting law violations.
In response to letter from Contra Costa DA sent earlier this yearCivil Grand Jury issues report to Antioch Council on city staff leadership turnovers, vacancies, possible Brown Act violations
“Any similar meeting on matters concerning the city could subject council members to criminal liability.” – DA Becton, Deputy DA for Public Corruption Bolen
Barbanica calls for resignations of Hernandez-Thorpe, Wilson, Torres-Walker and reopening investigation
Mayor says they were “get-togethers, not meetings”
“This is betrayal to the community and to the people they work with on the council,” Councilman Mike Barbanica
“What I’m not going to do is get caught up in Barbanica’s nonsense,” – Mayor Lamar Hernandez-Thorpe
By Allen D. Payton
The Contra Costa County Civil Grand Jury publicly released, on Tuesday, July 2, 2024, a report entitled, “Challenges Facing the City of Antioch.” It was sent with a cover letter to the council members on June 14 and includes three areas of concern including turnover in city leadership, city employee vacancies and “possible Brown Act (state open meeting law) violations by the Mayor and certain City Council members, as outlined in a letter to Antioch’s Acting City Manager from the Contra Costa District Attorney.”
While Mayor Lamar Hernandez-Thorpe denies the gatherings at his home attended by current Mayor Pro Tem Monica Wilson and District 1 Councilwoman Tamisha Torres-Walker were meetings at which city business was discussed, his former love interest, Lacy Ferguson, said she offered testimony to the DA’s Office and Grand Jury that the three did discuss redistricting of council districts.
The report also includes five recommendations, two with deadlines by Jan. 1, 2025. The cover letter signed by Grand Jury Foreperson Joanne Sarmento, copied to Acting City Manager Kwame Reed, requires a written response from the city council by Sept. 13, 2024.
The report reads, “Antioch is a dynamic and diverse city that faces a number of challenges. Among these challenges are:
1. Turnover in city leadership (six permanent or acting City Managers since 2013) which has resulted in an average tenure for Antioch City Managers that is less than half the state average (less than two years vs. 4.5-year average).
2. A city employee vacancy rate that is 4-times the national average (21.6% vs. 5.3%).
3. Possible Brown Act violations by the Mayor and certain City Council members, as outlined in a letter to Antioch’s Acting City Manager from the Contra Costa District Attorney (see Appendix A).”
Of the recommendations for the city council to follow, two are to be implemented immediately, one six months after the new city manager is hired, and two by next January 1st. The second recommendation is a reminder that city regulations preclude the mayor and council members “from having any direct authority to direct, supervise, hire or fire any city employee, other than the City Manager and City Attorney.”
Herald Publisher Participated in Grand Jury‘s Local Media Panel Discussion
For full disclosure, this reporter was one of three members of the media invited to meet with the Civil Grand Jury in June 2023, including Dan Borenstein of the East Bay Times and Tamara Steiner, publisher of the Concord/Clayton Pioneer. Issues regarding the hiring of the Antioch city manager and other matters were discussed and answers provided to questions from the jurors. However, it is unknown if anything discussed that day was used as a basis for the Grand Jury’s investigation or findings.
UPDATE: Asked if any of the input provided during the meeting with the local media panel was part of the basis for the Grand Jury’s investigation and report, new Foreperson Peter Appert responded, “As the deliberations and work of the Grand Jury are conducted in secret, we are unable to respond to your question. But thank you for your participation in Jury orientation last year.”
Letter from District Attorney, Deputy DA for Public Corruption Re: Private Meetings
That letter to Kwame Reed, sent on Jan. 3, 2024 (but incorrectly dated Jan. 3, 2023) and copied to City Attorney Thomas L. Smith and the Grand Jury was entitled, “RE: Alleged violations of the Brown Act by Antioch City Council members.”
DA Becton and Deputy District Attorney Steven Bolen, who was then in charge of public corruption, wrote, “The Contra Costa County District Attorney’s Office was contacted earlier this year regarding alleged violations of the Brown Act by Antioch Mayor Thorpe, Antioch Councilmember Torres-Walker and Antioch Councilmember Wilson. Specifically, we were told that those three council members met in private to discuss matters within the council’s jurisdiction regarding the Public Works Department and the hiring of the City Engineer. Our investigation also led to an allegation that those three city officials met in private to discuss the redistricting of the city’s electoral map. The District Attorney’s Office reviewed these allegations and the applicable law and then interviewed potential witnesses to determine whether any Brown Act violations occurred.”
“The Brown Act… prohibits a majority of the members of a legislative body to develop a collective concurrence as to action to be taken on any item within the subject matter jurisdiction of the legislative body unless such a meeting is open and public,” the letter continued. “…there is evidence that Mayor Thorpe and Councilmembers Torres-Walker and Wilson met at Mayor Thorpe’s home in 2022 and held discussions” and “Our investigation leads us to believe that Mayor Thorpe and Councilmembers Torres-Walker and Wilson did meet and may have developed a collective occurrence absent a public forum.”
The letter explained why there would be no action taken against the three councilmembers. It reads, “the District Attorney’s Office has serious concerns that non-compliance with the Brown Act may have occurred, however, there is insufficient evidence to prove beyond a reasonable doubt intentional violations of the statute at this time.”
Instead, Becton and Bolen decided to inform Reed, “in order for you to impress upon the council the importance of the Brown Act and the requirements of the statute. Any similar meeting on matters concerning the city could subject council members to criminal liability.”
“As the Brown Act makes clear, the deliberations and actions of our governmental representatives must occur openly and be subject to public scrutiny,” the letter concludes.
They also said they sent the “letter to the Contra Costa County Grand Jury to provide that body the opportunity to take any action it may deem appropriate.” (See CCDA letter re Antioch City Council)
The Grand Jury responded five months later with their report.
Hernandez-Thorpe Admits Private Meetings With Two Councilwomen, Torres-Walker Doesn’t Deny It
In a March 28, 2024 article by The Mercury News/East Bay Times, Hernandez-Thorpe admitted to meeting privately with Wilson and Torres-Walker. The report reads, “As to whether or not he met with Torres-Walker and Wilson, Hernandez-Thorpe said that he had but not for a nefarious purpose.”
“’We coordinate campaigns and whatnot, because we’re Democrats. We’re together all the time,’ Hernandez-Thorpe said. He later added, ‘I think if they can demonstrate that we violated the Brown Act, we’re more than happy to take corrective action.’”
Torres-Walker didn’t deny the private meetings and saying, “that she had no problem with whoever tipped off the DA using the proper channels to voice their concerns,” the article further reported.
Grand Jury Report
The report shared multiple statistics supporting the concerns outlined and offered an explanation for issuing it.
“We concluded that the police force was receiving adequate attention from other investigative bodies…However, the Grand Jury learned that the issues surrounding the police force are related to other issues of oversight and management within city government. In particular, we noted the average tenure for Antioch City Managers has been less than half the California state average over the last decade (average City Manager tenure of less than 2 years in Antioch vs. 4.5 years for the state).”
Source: CCC Civil Grand Jury
Methodology
The report shares the steps taken by the Grand Jury to obtain their information:
We interviewed government officials in Antioch and experts in city government practices
and regulation.
We reviewed press reports and other documents related to Antioch’s city government
operations and performance.
We reviewed recordings and transcripts of city council meetings.
We reviewed city budgets for the past 20 years.
We also reviewed documents related to city government best practices.
Discussion Points
The report then offered three main discussion points and 15 specific findings about the City of Antioch and its governance providing details for each. The discussion points matched the three challenges outlined in the report:
Excessive City Manager Turnover is a Negative for Antioch;
High Employee Vacancy Rates Negatively Impact City Services; and
Brown Act Compliance
Source: CCC Civil Grand Jury
Findings
The report summarizes the findings by the Grand Jury investigation, as follows:
F1. Antioch’s City Manager has broad responsibility to ensure the efficient operation of the city, including supervision of an approximately $100 million general fund budget and an authorized staff of over 400 employees.
F2. The city began the process of recruiting a new permanent City Manager in January 2024. As of June 10, 2024, no hiring decision has been announced.
F3. As outlined in both the City Manager job description and in city recruitment materials, the City Manager position requires a qualified and experienced individual.
F4. There has been a lack of continuity in City Managers in Antioch, with six City Managers or Acting City Managers since December 2013.
F5. Under city ordinances the City Council, including the Mayor, has no direct authority to direct, supervise, hire, or fire any city employees, other than the City Manager and City Attorney (Ordinance 246-A).
F6. The Mayor and City Council members have on occasion overstepped their authority in seeking to make personnel decisions, including terminating the then Public Works Director in December 2022, in ways not permitted by city ordinance (Antioch City Code § 2-2.06 and § 2-2.10).
F7. The Mayor and City Council members have on occasion sought to conduct meetings with City Staff without the approval or involvement of the City Manager, as required by city ordinance (Antioch City Code § 2-2.10).
F8. Antioch’s city government had a 21.6% employee vacancy rate as of February 2024, roughly four-times the national average for government agencies.
F9. In the absence of a permanent City Manager since March 2023, the city has deferred hiring new department heads when openings occur.
F10. The Police, Public Works and Community Development departments currently are without permanent department heads.
F11. Seven of the eleven most senior positions in Antioch city government are currently held by acting or part-time personnel, including City Manager, Assistant City Manager, Directors of Community Development, Police Services, and Public Works (all acting) and the Directors of Economic Development and Recreation (both part-time).
F12. The employee vacancy rate is above the city-wide average in the Public Works Department (26% vacancy rate) and Community Development Department (35% vacancy rate), both of which currently do not have permanent directors.
F13. Recruitment and retention of staff has been impacted by the absence of a permanent City Manager and the lack of permanent department heads in multiple city departments.
F14. The Contra Costa County District Attorney’s Office conducted an investigation into alleged Brown Act violations by Mayor Lamar Hernandez-Thorpe and Council Members Tamisha Torres-Walker and Monica Wilson, which was forwarded to the Grand Jury.
F15. The District Attorney’s Office noted serious concerns that noncompliance with the Brown Act may have occurred, however, there was insufficient evidence to prove beyond a reasonable doubt intentional violations of the statute occurred.
Source: CCC Civil Grand Jury
Grand Jury Recommendations
In the report, the Grand Jury also issued five recommendations, as follows:
R1. “The Mayor and City Council should follow through on the ongoing process of hiring an experienced and qualified City Manager.
R2. The Mayor and City Council should abide by city regulations (Antioch City Code § 2-2.06 and § 2-2.10) that preclude the Mayor and City Council from having any direct authority to direct, supervise, hire or fire any city employee, other than the City Manager and City Attorney.
R3. The new City Manager should, within 6 months of their appointment to the position of City Manager, recruit and appoint permanent department heads to fill current department head vacancies.
R4. By 1/1/2025 the City Council should direct the City Manager to undertake a study to determine the factors leading to the city’s high employee turnover and vacancy rates.
R5. By 1/1/2025 the Mayor and City Council should consider directing the City Manager and
City Attorney to organize an annual training session focused on Brown Act requirements and compliance for the Mayor, City Council members, relevant city employees and members of city boards and commissions.
Written Response Required by Sept. 13, Six Months to Implement Recommendations
The report asks for a written response from the city council by Sept. 13, 2024, required by state law, providing whether the council agrees, disagrees or partially disagrees with each of the findings and include explanations for each one with which they either disagree or partially disagree. It also requires the council members outline how they are going to implement the recommendations or if they cannot, why not. The council has six months to implement the recommendations.
Only Hernandez-Thorpe, Barbanica Respond to Questions for Councilmembers
Questions were sent Tuesday evening to all five council members asking for their comments about the three matters and the direction given by the Grand Jury. They were also asked, besides the search for a new city manager, what is being done to fill the staff vacancies and stem the tide of City employees leaving. The council members were also asked where they are in the process of hiring a permanent city manager, if they have interviewed any candidates, yet, how many, and if they have set a date for the process to be completed.
Hernandez-Thorpe, Wilson and Torres-Walker were specifically asked why they held meetings together outside of either closed session or regular city council meetings, how many private meetings were held at which the three were present, and if any city business was ever discussed.
They were also asked if the discussions involved the hiring of former City Manager Cornelius “Con” Johnson, restructuring the Public Works Department, hiring a city engineer and/or redistricting the city’s electoral map, as is included in the report, and if not, what was discussed during the meetings.
Finally, all five were asked what their response will be to the Grand Jury as requested.
Mayor Has Campaign Spokesman, Former City PIO Respond with Statement
Hernandez-Thorpe responded Tuesday night writing simply, “Rolando will respond on my behalf. Thanks! -LH.” The mayor was referring to Rolando Bonilla, his re-election campaign’s “Communications Director”, and the City’s previous public information officer whose contract was terminated last year. That occurred following the controversy over a press release with words attributed to then-Police Chief Steve Ford critical of the Antioch Police Officers Association, which Ford denied saying. Bonilla said he was later offered the job back by Acting City Manager Forrest Ebbs who was appointed after City Manager Con Johnson was placed on paid leave, and provided a copy of an email between Bonilla and Ebbs as proof. (See related articles here, here and here)
Bonilla wrote, “The Mayor isn’t going to waste his time responding to conspiracy theories, as he is focused on reforming a city government that was so unaccountable that it allowed its police department to publicly embrace a culture of hate and racism that would still be in place today were in [sic] not for the FBI intervening.
As far as the Brown Act, If the civil grand jury believed that the Mayor did something wrong then they should have had the guts to have detailed the allegations with facts. Instead, they hid behind a letter that had zero evidence of wrong but hid behind the word ‘possible’. Weak.”
Hernandez-Thorpe was reminded the Grand Jury is requiring a response from the city council by Sept. 13 and it was pointed out to him that Bonilla’s response did not answer the questions sent to the mayor and councilmembers. The questions were sent again to Hernandez-Thorpe.
Bonilla responded with the same statement. After pressing the mayor again for answers to the questions about the other issues and recommendations from the Grand Jury, Hernandez-Thorpe’s campaign spokesman wrote, “You got your answers. Run it if you want, or don’t. That’s all you are getting.”
YouTube video screenshot of Councilman Mike Barbanica’s comments on the Contra Costa Civil Grand Jury report posted on Tuesday, July 2, 2024.
Barbanica Posts Video Calling for Resignation of Mayor, Councilwomen, Further Investigation
About an hour after the questions were emailed by the Herald, District 2 Councilman Mike Barbanica posted a video on his YouTube channel and his county Supervisor’s campaign Facebook page Tuesday evening in which he called for the resignation of his three council colleagues.
“Last year the DA’s Office got a report from somebody that said that these Brown Act violations were occurring,” the retired police sergeant stated. “A criminal investigation was conducted at that time.”
“They in turn forwarded that off to the Contra Costa County Civil Grand Jury who launched an investigation,” he continued. “When they do those investigations, they’re done in secrecy.”
“Yes, they believe Brown Act violations possibly occurred, here, in secret meetings that were conducted at Mayor Thorpe’s house with all three of those members outside of the view of the public, with no other council members there and the public not having the ability to attend the meeting and it wasn’t properly noticed,” Barbanica shared. “That is a secret meeting where people collude, essentially is what the Brown Act is designed to guard against, issues of concern.” He then mentioned the matters believed to be discussed outlined in the DA’s letter.
“They can’t prove the content of the meeting,” he continued about the DA’s Office and Grand Jury’s findings. “Often what that’s from is people not talking about what occurred.”
“I’m urging…the two council members and mayor to step down,” the councilman stated. “Do the right thing.” This is not the way cities are supposed to operate. This is supposed to be open to the public, fair, transparent. This is not transparency.”
Barbanica also urged “DA Becton to reopen a criminal investigation and investigate this to the fullest extent of the law. I realize there are prior relationships there. If, in fact, you don’t feel comfortable doing that, please refer it over to the state Attorney General and have it investigated, there.”
“This has got to stop,” he exclaimed. “Many of us have felt that this has been occurring for some time. But now we have the DA’s Office saying, ‘hey, we think it might be, as well’ and we have the Civil Grand Jury saying, ‘we, too, think it might be, as well.’”
“I urge them to probe further into this and find out if criminal acts did in fact happen and if they did, prosecute them,” Barbanica stated. He then reiterated his call for “all the members, just do the right thing and step down.”
“We all know we can’t violate the Brown Act and I’m calling on the county Board of Supervisors to back me publicly, in this request, not only to the DA’s Office but to the members on the Antioch City Council, as well,” he concluded.
The mayor and councilwomen were then asked for their responses to Barbanica’s video.
Hernandez-Thorpe Says They Weren’t Meetings, Won’t Respond to Barbanica
But when reached for comment, later, the mayor said, “What I’m not going to do is get caught up in Barbanica’s nonsense.”
He then responded to the allegations of Brown Act violations saying, “We’ve had get-togethers at my house but not meetings. My house has always been the gathering place. The law is very clear and what you can’t do is have a discussion where you’ve had a predetermination where the public can’t participate. That didn’t happen.
“I appreciate the Grand Jury took a long view in terms of staffing issues. But the issue, for example in the Maintenance Department is compaction,” Hernandez-Thorpe stated. “There’s not enough pay differential between leadership and subordinates. But I can tell you we are dealing with it.”
Regarding low staffing levels in the police department, he said, “I’m sorry but they caused this problem internally,” referring to the FBI and DA investigations including for the racist text scandal.
About the report, Hernandez-Thorpe said, “We’ve had it for a couple weeks. The Grand Jury calls you in for the findings and they did that with Barbanica and me.”
The council is already addressing the first of the recommendations. Asked about hiring a new, permanent city manager the mayor said, “We’re close to the end. I can tell you that. We’ll probably have this wrapped in a month or month-and-a-half. What I will be doing is visiting the candidate and other council members are welcome to do it as well to spend some time with the candidate to see if it feels right.
Regarding the other recommendations and the required response letter Hernandez-Thorpe said, “We’ve never done it before. We’ll figure it out. It can be helpful. We’ve changed the Animal Shelter based on the Grand Jury’s recommendations.”
“There are times we have clearly violated the Brown Act,” he continued. “The CDBG Committee was meeting without notices. So, when I became mayor, I fixed that. When we put (former City Manager) Con (Johnson) on paid leave, Barbanica, Monica and Lori violated the law. I went on camera and said we messed up.”
“If we did something wrong we’re more than happy to correct it,” the mayor added.
“We’re all Democrats and tend to lean progressive. We don’t have to have secret meetings. We just tend to agree,” he explained.
Hernandez-Thorpe then shared statistics of the council’s votes as an argument about not just he and the two council members agreeing most of the time. He said, “Of 525 votes in 2021, 17 were 3-2 votes.”
The information is based on research by the Municipal Fellow working in City Hall funded by the Urban League, the mayor shared. Hernandez-Thorpe said he told him to look at voting trends. “In terms of split votes, we’ve had 4-1 votes 16 times and 4-0-1 votes when someone abstained, were 48 times. He looked at all of the votes.”
Former City Manager Con Johnson Denies Attending Gatherings at Mayor’s Home, Blames City Attorney
When asked if he had been in attendance at any of the gatherings where the mayor and two council members allegedly discussed city business, former City Manager Cornelius “Con” Johnson said, “No. I was not involved in any of those shenanigans. I was not part of any hiring process. I was not involved in either of those things. I was not at Lamar’s house when it came to my hiring or to the redistricting.”
“I do know the council was aware of it on other issues,” he continued. “I did send notices about violations to (City Attorney) Thomas Smith.”
“I think the city council started on a slippery slope. They were disclosing information to the press that was unlawful,” Johnson stated. “I do know that I did bring possible Brown Act violations. I blame Thomas because he failed to keep the council safe. It’s the city attorney who is to make sure the city council doesn’t cross that line. I can only speak to what I brought to Thomas, the city attorney of the Brown Act violations.”
Barbanica Says Witness Approached Him Before Going to DA
When reached later for answers to the questions emailed to him specifically about the issues of city staff leadership turnover and vacancies, Barbanica stated, “We’re in a sad state of affairs right now because a lot of the employees who have come into the city have seen what’s going on from the Grand Jury and DA’s office, and when they see opportunities in other cities, they take them.”
“We either need a full commitment from the council to do things the right way or we need a new council,” he said.
He was then asked why he’s calling for their resignations, now knowing he has more than five months remaining in his term, as Barbanica is running for county supervisor not re-election, and will have to continue to work with the mayor and two councilwomen. The councilman said, “This is a much bigger picture and nobody should stand silent just to get a third vote when we have serious violations that are occurring at the expense of the city. If that means I don’t have a third vote for calling this out for what it is, then so be it.”
Asked about the response letter required by the Grand Jury, Barbanica doubled down on his call for reopening the investigation.
“I will be responding individually to the Grand Jury and my recommendation in my response is to stand with me to pressure the DA’s office or the Attorney General’s office to reopen the investigation,” he stated.
“This is betrayal to the community and to the people they work with on the council,” the District 3 councilman exclaimed. “This is totally contrary to the way the council is supposed to operate. To look at us on the council and members of the community in the eye, knowing all along that this is a predetermined vote, that is betrayal to the community.”
“I will tell you the person who shared this information that led to the investigation came to me with it,” Barbanica offered. “By the time it got to the Grand Jury they were talking to multiple people. I sat with that person and talked with them and learned of the information at one point.”
“But I have assured that person I will not be the one to reveal their identity to the public,” the councilman added.
Mayor’s Former Love Interest Told DA, Grand Jury 3 Councilmembers Discussed Redistricting in Private
Both Antioch City Clerk Ellie Householder and Lacey Ferguson, Hernandez-Thorpe’s former friends had a falling out with him following, had a falling out with him following settlement by the Board of Supervisors of the sexual harassment claims against him in 2022. The women were each provided with the DA’s Office letter, cover letter from the Grand Jury foreperson and the report and asked if they were in attendance at any of the same gatherings at the mayor’s home, as he and the two council members. They were also asked, if so, do they remember what was discussed by the three council members, if they spoke with anyone in the Contra Costa DA’s Office or the Grand Jury, and for any other information they’d like to provide.
Ferguson responded, “I was a cooperating witness in the investigation, and you can reach out to the DA for any info you need regarding that. I live in another state.”
“I believe my recorded interview is the only evidence used in front of the Grand Jury to confirm discussions regarding redistricting, as I didn’t feel it was right to do to Lori.” She was referring to the gerrymandering by the three council members that created a new Council District 3 and 4, moving Ogorchock into Wilson’s neighboring district. It prevents Ogorchock from running for re-election this year. (See related article)
First Amendment Coalition CEO Says Private Discussions Violate the Law
After reading the letter from the DA’s Office, the cover letter from the Grand Jury foreperson and the report, David Snyder, CEO of the First Amendment Coalition, a government watchdog organization responded, “I’d say that while neither the DA’s letter nor the grand jury report definitely conclude that members of the city council violated the Brown Act, it appears there was substantial evidence that was that case. That’s very troubling. Public officials meeting in private to discuss such consequential matters as the redistricting of the city’s electoral map is a breach of the public trust, not to mention a violation of state law.”
Attempts to reach Householder and additional efforts to reach Wilson, Torres-Walker and Ogorchock were unsuccessful prior to publication time. Please check back later for any updates to this report.
For more information read the complete Brown Act state open meeting law.
During their meeting on Tuesday, June 25, 2024, the Antioch City Council on a 4-0 vote passed an ordinance banning organizers and advertisers of and spectators at sideshows. The matter was finally dealt with after discussing the matter since last fall and holding two previous votes, one which adopted an ordinance without targeting spectators and the follow up vote, for which none of the three council members present supported it. (See related articles here, here, here and here)
Most of the residents who spoke during public comments on the agenda item were opposed to including a ban on spectators citing possible constitutional issues and profiling by police, and concerns that those stuck in their cars could be cited.
Before hearing from residents during the public hearing, Mayor Lamar Hernandez-Thorpe said, “The city attorney would have acted as the proponent” but was absent from the meeting. The mayor then asked who would be the opponent, resident Alexander Broom volunteered and was given 10 minutes to speak.
“There are some large concerns I have with Attachment A which goes after the spectators,” he said. “I don’t think there’s a crime that I could be a witness to and be guilty of a crime. I think there are some constitutional issues there.”
“Anyone who is found to be within 200 feet witnessing or observing a sideshow,” he pointed out as one example.
“There are multiple instances that I would go to part of car culture, then you have people who show up and ruin the event,” he stated. “Me just being present doesn’t mean I’m a participant. This ordinance…is far too broad. I would encourage you to not include the spectator portion.”
“I had one of my friends come out to one of these events and a car show broke out. He was profiled,” he stated. “I could face up to six months in jail for being at the wrong place at the wrong time.”
“There are so many other routes you can go after spectators for this disturbance,” he said. “I think this opens up the city to more lawsuits…to more civil rights violations.”
“I’m open to compromise. I’d rather see the second ordinance go forward that doesn’t include spectators,” he concluded. “This is far too broad.”
Ralph Hernandez said, “These car culture violators should figure out how to lawfully and peacefully cruise. You should keep option 1 to include spectators.”
These are not really spectators. They’re encouraging bad conduct In law, that’s aiding and abetting,” he continued. “I think the police are smart enough…to make differentiation who is a spectator. How do those people claim they’re merely parked there?” he asked. “Come on you have to sell that to someone else.”
“The 200-feet limit, it’s appropriate because these sideshows take up a lot of space,” Hernandez continued. “Is that car culture? They’re violators of the law…by those actively participating, drivers, blockers. If they don’t want to be considered a violator they should not go there.”
“Their cell phones should also be confiscated,” he added. “It’s dangerous. It’s not a football game.”
Teshina Garrett, ACCE Antioch asked, “Who or what is considered a spectator?” and then spoke of her experience being stuck due to a sideshow. “We took photos…of people doing stupid stuff in the middle of the street. Does that make us a spectator?”
“Use these drones, Take their license plates, confiscate their vehicles,” she added.
Resident Dr. Kimberly Payton, Vice President of the NAACP East County Branch, spoke next about her own experience of getting stuck in traffic due to a sideshow. “Therefore, I don’t understand how you can tell a spectator and someone who is stuck. I just encourage you to consider the definition of a spectator if that’s the route the council is going.”
Andrew Becker also shared about “a sideshow that popped up. Within two minutes there were 200 people there. They were jumping on my car. I understand there’s a subjective component there. I also understand you have to have these tools. It’s the individuals…who are driving these things. I’m wondering if…an individual who is cited, they can have it reviewed by the Oversight committee. I think that would be monumental. It might alleviate some of the concerns here.”
Gavin Payton asked, “Some of the sideshows are actually dangerous for cars and for pets, the next day because they’re throwing bottles and the glass is breaking on the curbs and the bushes. Is there going to be some kind of action for that, as well?”
A resident named Devin said, “We really need to determine what a spectator is. We all know that the definition that some will use is not fair to everyone. People can determine who’s participating in these things, who’s taking videos and advertising these things. This is a problematic issue we are having in this city. But the language…people being accused of being a spectator, but they weren’t. Two hundred feet…that’s not fair.”
A woman named Laura said, “I am not an expert on car culture but I’m an excellent driver…and I am a parent. I think it’s dangerous to include spectators …because…systemic racism is a thing. So, I don’t think spectators should be included in this.”
Louise Green spoke last saying, “Using the simple word spectator is scary to everyone. I think this is more targeted to spectator participants. It’s a game they play. They were throwing T-shirts over their license plates. They’re actually throwing their bodies into the cars. You’ll have to put the spectator clause in there. Unless you can get real specific on the language, they are spectators, but a participant spectator. They have racing guns that they signal when the police are coming. There were maybe five people on the sidewalk. But the 200 were spectator participants. They get out of their vehicles. If I’m trapped in my car, they’re going to know, they’re not part of it. We do have to include them because they’re part of the problem.”
Council Discussion
Barbanica spoke first saying, “We’re talking, here about active participants. Not someone sitting in their cars. There’s also a big difference with someone videoing, when an officer rolls up. They say, officer, ‘here’s my phone.’”
“They leapfrog ahead to the next sideshow. It’s very detrimental to the community,” he stated. “This has terrorized the community long enough.”
“These are roving sideshows that are very organized. We have to go after people who are active participants,”
“These sideshows are getting more and more frequent and they’re roving around the city,” Ogorchock stated. “I would ask the city attorney’s office if we can increase the penalties not just $1,000.”
“A San Joaquin Sheriff would not release the cars from a sideshow until the participants’ court dates,” she shared. “These cars are part of evidence.”
“I think we should also look at reimbursement for the use of our resources,” Ogorchock continued. “As we as community members, these are our dollars. These people, the majority of them are coming from outside the community.”
“This is a quality-of-life issue,” she stated. “If we can’t add these to the ordinance toight
Wilson said, “I’m going to steal the term spectator participant. These spectator participants…they’re filming and livestreaming it to let their friends know where they are. We need to hold those participants accountable along with the organizers and advertisers.’
“I betcha there are people from inside our community,” she added.
“We need to start talking about why is this happening. What’s the root cause?” Wilson asked. “We definitely need to include something about the spectators.”
Hernandez-Thorpe spoke last saying, “this doesn’t necessarily stop sideshows. These are tools that once sideshows are happening they can be used. These aren’t preventative. What actually prevents sideshows is determining who is starting them. But unfortunately, our traffic division has been decimated.”
“I’m all for all of them, spectators, organizers and those who advertise,” he stated. “If we pass something tonight it will come back late July and will go into effect 30 days later, at the end of the summer months. If we need to make changes, we do it in the fall.”
“The technology in the police department in my opinion allows them to differentiate between a spectator,” the mayor shared. “Let’s pass something now, tonight and build on it and not let perfection be the enemy of progress.”
Ogorchock then made a motion saying, “I’m going to add” then read the ordinance that included banning spectators, “including not releasing vehicles until court dates and reimburse costs of resource.”
The Assistant City Attorney said, “I think there are some concerns…that we can’t address tonight” in response to a question from Barbanica.
No one seconded the motion.
Barbanica then moved approval of the ordinance including spectators as written. It passed 4-0.
Ogorchock then asked, “that we come back with the two proposals.” But both Barbanica and Wilson had already left the dais, so the mayor said, “Uh, no. There’s no consensus. Everybody left.” They then took a two-minute recess.
She tried again following the break but none of the other council members supported her proposals.
Ordinance Details
The ordinance adopted includes the following:
City Council introduced the proposed ordinance adding Chapter 4 to Title 4 (Public Safety) to the Antioch Municipal Code, which prohibits organizing, advertising, and being a spectator at street racing, sideshows, and reckless driving exhibitions;
Organizing or Advertising Street Races, Sideshows, and Reckless Driving Exhibitions Prohibited
It is unlawful for any person to knowingly organize a street race, sideshow, reckless driving exhibition, or exhibition of speed conducted within the City on a public street, highway, or in an offstreet parking facility.
B. It is unlawful for any person to advertise, within the City, a street race, sideshow, or exhibition of speed conducted or to be conducted in the City on a public street, highway, or in an offstreet parking facility.
C. It is unlawful for any person to advertise online, including on social media, a street race, sideshow, or exhibition of speed conducted or to be conducted in the City on a public street, highway, or in an offstreet parking facility.
Spectators at Sideshows, Street Races, and Reckless Driving Exhibitions Prohibited
It is unlawful for any individual who to be knowingly present as a spectator, either on a public street or highway, or on private property open to the general public without the consent of the owner, operator, or agent thereof, at an illegal motor vehicle sideshow, street race, or reckless driving exhibition.
B. It is unlawful for any individual to be knowingly present as a spectator, either on a public street or highway, or on private property open to the general public without the consent of the owner, operator, or agent thereof, where preparations are being made for an illegal motor vehicle sideshow, street race, or reckless driving exhibition.
C. Local law enforcement shall have the authority to cite any spectator in violation of this Chapter with an administrative citation.
D. An individual is present at the illegal motor vehicle sideshow, street race, or reckless driving exhibition if that individual is within two hundred (200) feet of the location of the event, or within two hundred (200) feet of the location where preparations are being made for the event.
Enforcement
A. Any person who violates this chapter is guilty of a misdemeanor subject to a maximum of six (6) months in jail, a fine of $1,000, or both, unless at the discretion of the district attorney or a court of competent jurisdiction, the violation is reduced to an infraction.
Antioch School Board Vice President Mary Rocha (right) reads a prepared statement during the May 22, 2024 board meeting calling for a vote to censure President Antonio Hernande. Source: AUSD YouTube video screenshot
Resolution claims Antonio Hernandez committed 12 violations of board policies and bylaws, federal HIPPA law and Brown Act open meeting law cited
By Allen D. Payton
During the Antioch School Board meeting on Wednesday, June 25, 2024, Board President Antonio Hernandez faces a vote to censure him proposed by fellow Trustee and Board Vice President Mary Rocha for publicly divulging personnel and closed session matters and to the media, among other reasons. It occurred while he spoke with an NBC Bay Area TV about the accusations by district employees of bullying by a supervisor and called for Superintendent Stephanie Anello’s resignation for not handling the situation they way he would have preferred.
At the end of the May 22nd board meeting, Rocha read a statement calling for the censure to be placed on the next board meeting agenda. However, Hernandez pointed out that Area 3 Trustee Dr. Clyde Lewis would be absent for that meeting, so the item was placed on Wednesday night’s meeting agenda. (See 3:10:00 mark of the meeting video)
Under Resolutions for Immediate Action, agenda Item 15F reads, Resolution No. 2023-24-57 Censure of Board President Antonio Hernandez. It outlines 12 times he violated board policies and bylaws, federal HIPPA law and the state’s Brown Act open meeting law which includes:
Board President Hernandez divulged confidential, privileged information regarding personnel matters with members of the media;
Board President Hernandez divulged confidential, privileged information regarding closed session matters with members of the media;
Board President Hernandez violated the Health Insurance Portability and Accountability (HIPPA) Act by divulging confidential health-related information of a District employee to the media;
Board President Hernandez, violated Board Policy 9200, by speaking out of turn, in public, regarding private and confidential personnel matters, appearing to take on an administrative role;
Board President Hernandez, violated Board Policy 9200, by acting in an administrative capacity to resolve complaints;
Board President Hernandez, sought to evaluate the Superintendent in a public forum, outside of the closed session arena in violation of Board Policy 2140;
Board President Hernandez, used his public Facebook account to post confidential correspondence from a District paid for legal counsel, breaking the confidentiality of the document posted, and posting confidential correspondence to the Board of trustees, which was directed to a closed session item in violation of Board Bylaw 9012;
Board President Hernandez attempted to schedule two Special Board Meetings, while also being told that there would not be a quorum for the meeting;
Board President actually commandeered the Board Room to hold an unsanctioned meeting with members of the public, placing members of the administration in potential jeopardy of violating California’s Open Meeting Law (the “Brown Act”);
Board President Hernandez usurped the authority of the Board by appearing to speak on behalf of the Board or Trustees in media news reports, via his Facebook posts, and in public meetings in violation of Board Bylaws 9010 and 9012;
Board President Hernandez, failed to implement Board Bylaw 9121, when a local media reporter verbally attacked the Superintendent during a Governing Board Meeting;
the Governing Board hereby finds and determines that Board President Hernandez’s conduct is unacceptable, unprofessional, and a violation of the Board Bylaws and State Laws cited above.
The proposed resolution concludes with four resolutions and orders including:
“NOW, THEREFORE, BE IT RESOLVED and ORDERED that the Governing Board of the Antioch Unified School District hereby finds that the foregoing recitals are true and correct.
…that based on these recitals, the Governing Board of the Antioch Unified School District hereby formally censures Board President Hernandez and proclaims publicly that this Board disapproves of the aforementioned conduct and finds it to be a violation of the Board Bylaws and State Laws and constitutes unacceptable behavior that shall not be tolerated.
…that Board President Hernandez shall treat fellow Board members and all District staff with dignity and respect at all times and in all forums, and that he refrains from any further violation of Board Policies and Bylaws.
…that any further violations of Board Policies and Bylaws by Board President Hernandez may result in his removal as Board President.”
The school board meeting begins at 7:00 p.m. in the board room at the Antioch Unified School District office building at 510 G Street in Antioch’s historic downtown Rivertown. It can be viewed live on the District’s YouTube channel.
