Folks where there is smoke, there is fire and you can bet several are burning at City Hall.
Well, the Brea dam story has finally been broken by David Curlee. He is an extremely brave, intelligent and conscientous Fullerton resident who has really done his homework and he has just scratched the proverbial surface.
His website http://breadam.org/ Cronyism, Corruption, and Incompetence in the City of Fullerton, CA reads like a book on the tricks of the trade employed by some in Fullerton City Government who I believe have clearly violated the public trust that has possibly put the Fullerton Sports Complex, The YMCA, The Fullerton Golf course, and the rest of the facilities located on, the people employed by them, and the people that use the 200 plus acres owned by The US Army Core of Engineers in jeopardy. The agreement that the city entered into whereby the land being set aside for the public benefit and enjoyment is revocable if certain conditions are not met or certain provisions are violated.
The information presented by Mr. Curlee appears to justify a possible revocation and is deeply disturbing to say the least. No matter how you slice it, we deserve better from our public employees and our elected representatives. Share this information and let the city council know how you feel next Tuesday starting at 6:30 pm at City Hall. Let them know that they will be held accountable.
DAVID CURLEE HAS DONE HIS HOMEWORK FOR ALL OF FULLERTON TO SEE AND FOR ALL OF US TO DO SOMETHING ABOUT IT.
Fullerton has been given a rare gift. More than fifty years ago, the United States Army Corps of Engineers granted Fullerton a lease to use the Brea Dam and adjacent flood control basin for recreational purposes. As of the 2001 lease amendment, this area totaled 224 acres and includes the Fullerton Municipal Golf Course, Fullerton Sports Complex, Fullerton Tennis Center, YMCA, Fullerton Community Nursery School, Child Guidance Center, Hostelling International USA, and Golfer’s Paradise.
The cost for this lease? ZERO.
Not only is the lease granted free of charge, the City is allowed to generate revenue and employ people at these facilities provided certain conditions are met. The lease agreement lays out various conditions like any other arrangement between Landlord and Tenant with no real surprises.
Brea Dam Lease Agreement (between the City and Army Corps of Engineers)
NOTE: Best viewed on computer or tablet. Use the Bookmarks Panel to find the current lease conditions by number. Otherwise, you’ll quickly get lost.
The City’s multiple breaches of the Army lease is particularly concerning since it affects every sub-lessee on the leased land. Failure to abide by the rules threatens the livelihood of sub-lessees and their employees who have done nothing wrong. While I’m not going to expound on every lease condition, the most important conditions are the following:
Condition 17 makes clear two things:
- Fees collected on the Brea Dam land [the premises] must be reinvested back into the Brea Dam. The City, as Lessee, CANNOT spend the money on other needs throughout the City. The revenue is restricted.
- Every five years, any surplus revenue must be remitted back to the Federal Government [Army Corps District Engineer].
This isn’t hard to understand, right? Our current City Manager Joe Felz (former Director of Parks & Rec) and Parks & Rec Administrative Manager Alice Loya are well aware of these requirements. Joe Felz was noted on the record discussing these rules on 9-10-2007, 12-8-2008, and 5-18-2009. Alice Loya was noted on the record doing the same 5-14-2007, 12-8-2008, 4-11-2011, and also by e-mail written to me 8-3-2015 (below):
Note the text (above) in green: “We use all of our revenue on Brea Dam programs…” Three days later, I received the General Ledger for the ’42’ Brea Dam Fund for FY 2014-15 in a separate records request. I immediately noticed expenses charged to 42588 Brea Dam Events for the Fullerton Museum, the Fishing Derby at Laguna Lake, and the 4th of July festivities — art supplies, posters, and an office equipment lease at the museum. The dollar amount isn’t substantial in the grand scheme of things, but that’s not the point. Alice lied about the Brea Dam funds being used exclusively inside the dam.
This made it rather obvious that a closer look was necessary to locate other money being used inappropriately. The Fullerton Municipal Golf Course (managed by American Golf) used over $200,000 in water in FY14-15. Notice the charge for Sanitation…
Fullerton Municipal Code, Chapter 12.14, regarding Sanitation Charges:
The Brea Dam doesn’t have sewers, underpasses, concrete curbs, sidewalks, or drainage systems maintained by the City. Tree trimming and brush removal costs are paid from Brea Dam revenue sources. Thus, the sanitation fee (25% of water usage) is not a legitimate charge because the restricted Brea Dam revenues pay the bills. They are siphoning Brea Dam revenue that would otherwise have to be paid back to the Federal government to fund sanitation repairs and improvements in OTHER parts of Fullerton. Assuming water costs of $200K annually, that’s roughly $40,000/year being misappropriated.
On a side note, the golf course was only required to reduce water usage by 20% this year. Why is that, you ask? Unlike the rest of us, the golf course is revenue-producing for the City, and that’s all that matters to them. Sad, but true.
There are two cell towers on the leased Brea Dam land, but the accounting ledger only recognizes revenue for one of them:
|248 Helen Drive||Verizon tower at the Tennis Center|
Cell tower revenue runs somewhere around $25,000 annually, so there’s obviously money missing from one of the sites. Once again, the revenue is restricted in both instances and cannot leave the Brea Dam for other purposes. I’ll get back to discussing financial problems on other pages.
Conditions 11, 12, 13
These conditions make it abundantly clear that the US Army Corps of Engineers will kick Fullerton to the curb if they ever realize what’s happening and Joe Felz dismisses it as a veiled threat. USACE has thousands of similar lease agreements all over this country. The fact they haven’t caught on yet — and, no, I haven’t told them — is NOT an implied waiver permitting this sort of behavior.
We need to remember the Federal government is totally unpredictable and reacts to problems in some of the most unreasonable ways. Evicting the City (and the sublessees), then driving a bulldozer through the YMCA is not outside the realm of possibilities. We have plenty to lose by not holding Mr. Felz accountable.
Conditions 3 and 23
It appears that none of the subleases (or the management contract) are in compliance with Conditions 3 and 23, as written below.
Alice Loya’s reply to my e-mail (her comments are in red) is not good news.
Without those prior approvals, the Management Contract negotiated with American Golf in 2010, the YMCA 2007 sublease, and the Child Guidance Center and Fullerton Community Nursery School 2009 leases were null and void from the start.
Conditions 4 and 5
Joe Felz and Alice Loya used to ask the Parks and Recreation Commission and/or the City Council to approve the rates charged at the golf course and tennis center, which is meaningless given the wording below. The Army Corps of Engineers is supposed to approve the rates every 6 months, not the City Council.
I’m guessing the last part of No. 5 has not been complied with in some time. See Alice’s reply directly above.
The Fullerton Golf Course maintenance building is currently being rebuilt after a fire destroyed the old building in March. Did the City seek Army approval for design of the new building?
The golf course has a mini “gas station” near the site of the maintenance building. The tanks for Unleaded and Diesel are above ground and appear to be in reasonably good condition, but who oversees the equipment to ensure nothing is leaking? The water table is high at this location, so it wouldn’t take very much to contaminate groundwater or flow into Brea Creek during a storm. Whether you’re an ardent environmentalist or not probably doesn’t matter, as the financial burden alone to clean up an extensive spill could reach six or seven figures, maybe even more.
Part (c) requires approval in writing before applying pesticides or herbicides. The golf course applies both on a regular basis. Does the City have written approvals for that? What about the Fullerton Sports Complex, and presumably Golfer’s Paradise, does the City have approvals to cover pesticides and herbicides at those locations as well?
Apparently nobody at the offices of Jones & Mayer — our City Attorney — has bothered to look over the Army lease either. The 2007 YMCA sublease between the City and the YMCA binds them to the 1959 Army Corps of Engineers lease which was superseded in 1967.
2007 YMCA Lease.
Condition 28 from the 1967 lease.
To make matters worse, somebody screwed up and combined the 1959 Lease with the Supplements for the 1967 Lease as if everything belonged together.
I didn’t inquire about this specifically, so I have no idea if the City is in compliance. I’m leaving it here for City employees (and the public) to be mindful of.
Fullerton Municipal Code 2.48.250
Prior City staff, members of the City Council, or both, recognized the need to properly delineate the purpose of the Brea Dam Recreational Fund. They did so with the City Council passing an ordinance in 1978 which remains part of our municipal code:
2.48.250 Brea Dam Recreational Area Fund.The Brea Dam Recreational Area Fund shall be used to account for the revenues and expenditures of the various recreational activities that are revenue producing at the Brea Dam Recreational Area.
(Ord. 2243 § 1 (part), 1978).
This wording appears more restrictive than that required by the Army lease. Note the limitation to “revenue producing” activities. Many partner youth leagues don’t pay to use the Sports Complex. (youth leagues playing at night do contribute money toward the field lighting)
The Beginnings of Cronyism
Bonds to replace the Irrigation System
Lease vs. Management Agreement
New Management Agreement
Invoicing and Accounting
Phony Golf Supplier
No Inventory Controls
Illegal Trash Collector
Purchase Card Abuse
Jay Lim Golf Academy
Maintenance Building Fire and Reconstruction
Other Projects without Competitive Bidding
The Fullerton Municipal Golf Course has been a part of Fullerton for numerous decades. American Golf has been the lessee and, more recently, the operator, under the terms of a new Management Agreement negotiated in 2010. The course was previously leased to American Golf (and its predecessors) dating back to 1979. Some clarity might be helpful as Fullerton has other golf facilities. The Fullerton Municipal Golf Course occupies almost 75 acres northeast of the intersection of Harbor Blvd and Bastanchury Road, running east to its boundary near Beechwood School.
American Golf operated the course as close as possible to a private business under the lease arrangement that was voided in December 2010. They were responsible for operating costs, liability, maintenance, improvements and employing the staff necessary to run the pro-shop, restaurant, and maintenance crew. In return, they paid the City of Fullerton 20% of gross golf revenues and 8% of gross restaurant revenue. This resulted in $300,000 to $500,000 of revenue to the Brea Dam Fund every year and was a good arrangement for the residents of Fullerton.
The Beginnings of Cronyism
Dating back to 2007 (and maybe even earlier) American Golf management started getting cozier and cozier with City of Fullerton officials including then-City Manager Chris Meyer, Joe Felz, and Alice Loya. Despite no contractual obligation to do so, the City agreed to construct netting in 2007 to protect the residents of Fairway Isles from golf balls leaving the course and entering their property. Some pretty obvious cronyism is apparent in this March 2007 agenda letter, as if American Golf deserved some sort of reward for their past performance.
They returned to City Hall a few months later and complained their water costs were up 83%, electricity up 28%, maintenance up 22%, carts up 50%, and other expenses up 67% over the year prior. Somebody wasn’t being completely honest with their math because utility rates didn’t increase that fast in one year’s time. It was likely the result of increased usage.
Fast forward to 2010. The recession was being felt hard by everyone. The City of Fullerton was forced to make cuts across the board that year, including cuts to Parks and Recreation. Meanwhile, as part of the stimulus package, the Federal government offered Recovery Zone Economic Development (RZED) Bonds in the American Recovery and Reinvestment Act of 2009. Fullerton applied for, and received, an allocation of $2.7 million. Despite having nearly the entire year to find a more suitable project, City Hall decided toissue bonds to replace the sprinkler system at the Fullerton Golf Course. No joke. Remember, Fullerton was under NO OBLIGATION to do this since American Golf was responsible for course improvements.
The bonds were pushed through a City Council meeting on November 2, 2010 — the same day as mid-term elections when the City knew everybody would not be paying attention. The RZED bonds were hidden pretty well by combining their issuance with Water Revenue bonds. The debt service schedule on these bonds paints a rather awful picture: $5.1 million for an irrigation system that wassuccessfully bid at $1.7 million.
The City justified the high-rate of interest on these bonds because the Federal government promised a 45% refund on the interest payments. Nobody cared that taxpayers will still be on the hook for that amount (over $1 million) by the time the bonds reach maturity. All of this for silly irrigation system replacements at a golf course.
Bonds are pretty much poison for many reasons, including their cost of issuance. Of the $2.705 million, approximately $370,000 was estimated going places other than the golf course project. (Note: The Series B bonds were the water revenue bonds issued at the same time, unrelated to the golf course.)
The detailed paperwork on these Series A (and B) Bonds is here.
Once the bonds were passed, Alice Loya at the following City Council meeting requested the Golf Course Lease be converted into aManagement Agreement because it was required of the bonds. Why wasn’t this done first?
Analysis of the video below:
|1:09||They picked the golf course project because the irrigation system was old. Why didn’t she tell the City Council that we were under no obligation to fund that project?|
|2:31||“The City is not responsible for any of those things, we just receive the revenue.” What then was the point of issuing the bonds? Just a favor to American Golf?|
|2:35||“Operating costs are about $1.1 million dollars per year.” American Golf’s financials show costs for 2011 as being over $1.5 million, which means her figure was understated by 36%. http://breadam.org/wp-content/uploads/2015-Fullerton-GC-Annual-Comparison-and-Plan.pdf|
|3:08||“We plan to pay American Golf a management fee of $500,000 a year and it will increase at 1% each year.” FALSE. The real figure from the signed contract is $670,000 with 1% increases.|
|3:20||“The agreement is required to be at least 15 years.” Not true as far as I can tell. In fact, under IRS rules, the maximum is 15 years, which is probably the term American Golf demanded for their own self-serving interests.|
|3:58||“American Golf will receive $500,000 fee … Debt Service will be paid out of the gross revenue.” Again, FALSE. The real number is $670,000.|
|4:06||“The difference between these two agreements is that the City will make a little more and American Golf will make a little bit less.”This is complete deception on her part. See below for additional discussion on that.|
|4:50||“The liability lies with the golfer.” What about all of the other reasons people might sue?|
|7:10||“What we think we’re going to do is American Golf will continue with their carrier and coverage and we will reimburse them for it.” They don’t know the answers yet but they’re asking City Council to say yes anyway? A complete failure by both sides.|
Lease vs. Management Agreement
The slide pictured below is very deceptive. Note the Debt Service amount of $36,520 and compare it to the table on the right which shows $66,956 for 2011.
Nothing was paid toward the principal in 2011; only interest payments. $36,520 divided by $66,956 = 0.545 which means Alice already factored in the Federal interest subsidy of approximately 45%.
Come 2012 and later years when the principal payments and higher interest kick in, this changes her analysis completely. Applying her same logic to 2012: $197,575 multiplied by 0.55 = $108,666 in interest payable. Add the principal of $90,000 and you get $198,666 in debt service payments for the year. The $500,000 management fee must also be changed to $670,000. With her same revenue and expense assumptions, the “net revenue” for 2012 plummets:
$2,230,000 minus 1,140,000 minus 670,000 minus 198,666 = $221,334. She never explained that to the City Council. Meanwhile, the City remains responsible for expenses that continue to climb, but American Golf is guaranteed $670,000 no matter what they do with 1% increases annually.
Ms. Loya also failed to tell the City Council we had to purchase from American Golf all of the pro-shop and restaurant inventory plus the furnishings, and all of the tractors and lawn mowers for an extra amount.
Nevertheless, nine minutes after Ms. Loya stepped to the podium, the City Council approved a deal without knowing the details of, or ever seeing the new management contract. A deal that over the length of its fifteen year term will require $50 to 60 million of expenditures.
New Management Agreement
The new management agreement negotiated by Joe Felz and Alice Loya was never seen or approved by the City Council or Parks and Recreation Commission. Ms. Loya simply requested permission to enter into this agreement, a very dangerous way of doing City business. At no time should the City Council be authorizing City staff to enter into deals of this nature until the contract language can be properly reviewed in open session.
Overall, the terms of the agreement are unreasonably favorable to American Golf:
- Wages, pensions, healthcare, and other benefits of American Golf employees (except for the General Manager and Superintendent) are paid by the City of Fullerton through reimbursement to American Golf. There is no limit on compensation or staffing levels. See sections 3.6.2, 3.7, and 6.2.
- American Golf told the City what insurance policies they wanted and the City agreed, to the point of giving American Golf the right to demand extra insurance as they see fit. As part of this, the City is paying for crime insurance in the event of dishonesty by American Golf employees. Yes, really.
- American Golf gets to write their own budget documents as part of their “Annual Plan.” Unless the City voices any objections, the Annual Plan is automatically approved.There’s some inconsistencies because Section 3.2.1 gives the City 60 days to approve the Annual Plans, while Section 3.2.2 limits the same to 30 days.Practically speaking, this has made no difference because Alice Loya never issued the written approvals as required by Section 3.2.2, so the Annual Plans were approved by default. Read my e-mail exchange with Ms. Loya on this. Not only were approvals never issued, she was unable to produce any of the Annual Plan documents highlighted in green (below) with the exception of an Equipment Inventory. So unless the remaining documents were lost at City Hall, American Golf is not complying with the Annual Plan requirements and apparently nobody from the City has held them accountable for that.
- The City cannot cancel the agreement before its expiration date unless American Golf violates the terms or files for bankruptcy, or else a flood or fire causes significant damage to the course. See sections 7.1 and 9.1.
- Holding American Golf accountable to their “Annual Plan” budget under Section 3.2.3 is virtually impossible for two reasons. American Golf works on a normal calendar year, but the City’s fiscal years run from July 1 to June 30. Secondly, many of the expenses they submit for reimbursement are on a cash, not accrual basis, meaning it might be impossible to assign the expenses to the proper period to make any meaningful comparison.
- The agreement covers operation of the pro-shop and restaurant/snack bar, but is almost silent on specifics. For example, nothing is said about the collection and remittal of Sales Tax. As a result, the sales tax is paid to the City as ordinary revenue, then American Golf bills them for it like a regular expense, thereby artificially inflating the golf course revenues and expenses. I’m told this practice may be considered illegal by the Board of Equalization. Who is responsible for ensuring control of the inventories, or that the restaurant complies with health department rules? Does the City realize employees of the pro-shop are paid sales commissions? Who really holds title to the pro-shop inventory on hand? These and many more specifics should have been properly addressed in the Management Agreement.
American Golf can demand more money from the City on just five days notice. Section 6.4 requires the City to hand over records to American Golf, but there is no explicit requirement for American Golf to do the same.
- In the event the City suspects any financial misdeeds and desires an audit, American Golf will “train” and “supervise” the accounting firm.American Golf claims ownership in the accounting software used — even though the City is likely being billed their share of the costs — and once the agreement expires or is terminated, the City has no right to that software. This appears to be some sort of extortion to discourage termination of the agreement. In the event such software is proprietary to American Golf, the City has no choice but to preserve the agreement if they want access to the accounting records.
- Section 3.6 contains a convenant not to compete for the General Manager that is illegal under California law. They forbid the City of Fullerton from employing any American Golf general manager who worked the Fullerton Golf Course for one year after the City terminates the contract.
Business and Professions Code §16600: 16600. Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.
More background is widely available on the internet, but here are a couple links:
Employee Covenants Not to Compete: The Myth of Enforceability and Alternative Protective Measures Available to California Employers
- Despite the agreement being full of references to litigation and other proceedings, the final clause of the agreement is a Waiver to Jury Trial with no Arbitration Agreement attached to it. This was ruled unconstitutional by the California Supreme Court in Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944 some five years before the Management Contract was entered into.More background info here: Wave Goodbye to Pre-Dispute Jury Waivers
Hello, Mr. City Attorney? Did you or anybody else from Jones & Mayer proofread this contract at all? For that matter, do you regularly sign contracts that are so lopsided against your clients, and contain illegal provisions?
Invoicing and Accounting
Every month, American Golf submits to the City of Fullerton an “invoice bundle” consisting almost entirely of payroll reports, printouts for the managers’ purchase cards, and the bills paid for water, electricity, and natural gas. I requested from the City a full twelve months of these American Golf reports covering what would be the City’s 2014-2015 fiscal year.
The bundles come in two parts, representing multiple accounts. There’s always a spreadsheet like this one:
See the line toward the bottom “Internet Sales – Players Club/Golfzing” and how the amounts are listed in parentheses? American Golf is supposed to be sending the City 100% of the revenue they receive. Here, they are hiding internet sales revenue inside the Billing Invoices to reduce expenses.
Another part of the invoice bundle is this additional invoice for the checking account. They do not invoice for actual expenditures! They bill for whatever cash is necessary to restore the checking account to a minimum balance of $55,000. This method makes it extremely difficult to follow checking account expenditures because you would have to know the beginning and ending balances first, then calculate from there how they arrived at each.
What’s worse is how they attempt to justify their checking account expenditures. They include this report from Wells Fargo which shows checks being cashed, but nothing to authenticate the payee — only check numbers.
Instead of a bank report affirming the payee, they include their own reports of expenditures — with no check numbers to match up to the Wells Fargo reports. Pay close attention to the supplier “Kurihara America Inc” (below). More on that in a second.
The 12 months of invoicing bundles can be found on the Files page under Fullerton Golf Course.
Phony Golf Supplier
If anyone thinks I’m being overly pedantic about proving their expenses, perhaps this will change your mind. See the entry above forKurihara America Inc?
They filed for Chapter 7 Bankruptcy in 2011 and estimated no future income.
The corporation was subsequently dissolved with the California Secretary of State in 2012 according to the report on Wysk.com. You can also verify this on the State’s website although no dissolution date is listed. The date indicated below is the day the corporation was formed.
Nowhere in these reports does American Golf provide receipts or invoices to support expenditures for the following:
- Worker’s Compensation
- Benefit Costs
- Health and Pension Plan Expenses
- Leases on the golf carts (over $100,000/year)
- Phone bills which vary widely from month-t0-month
- IT expenses
- Sales Tax collected or remitted to the Board of Equalization
And many more items. Monthly payroll expenses are frequently $3,000 to 5,000 higher than their payroll reports indicate. Utility expenses don’t always match up. Most of the pro-shop and restaurant inventory is handled from a separate checking account, with expenses not appearing on the billing invoice spreadsheet.
I politely pressed Alice Loya on this issue multiple times and this was her response (in red):
Her rationale for not having copies of these documents is that the City doesn’t deem it necessary to keep them on file, even though American Golf is supposed to be submitting invoices for everything.
Likewise, she doesn’t appear concerned that documentation is missing for things like benefits and insurance because those documents were approved FIVE years ago when the management agreement was first entered into in December 2010. Hello? Health insurance plans (and costs) have changed substantially since 2010. Important documents like subleases to a golf academy (which isn’t authorized to be there anyway) aren’t important to have and preserve either?
No Inventory Controls
On behalf of the City, American Golf purchases large amounts of alcohol, cigarettes, cigars, food, apparel, and golf equipment to sell in the pro-shop and restaurant. No documentation is included in the monthly invoicing bundles to report on inventory levels. The City apparently doesn’t capitalize smaller items, so the inventory levels on the City’s books haven’t changed in years.
Given the above problems with purchase card abuse and suppliers who no longer exist, performing audits using American Golf’s inventory lists (the way Ms. Loya describes below) may well be a useless endeavor. Large amounts of inventory may or may not be missing, but it’s impossible to know either way with such poor records being furnished.
Also disturbing from an accounting and claims perspective is proper accounting of the larger items. Who owns the computers, printers, big screen TV’s, the tables and chairs, desks, bookcases, and all other furnishings of the offices? Does the City really hold title to the lawn mowers, tractors, and the tools which were destroyed in the maintenance building fire?
There were no adjusting entries made in the Brea Dam Accounting Ledger to recognize either the losses incurred in the fire, or the purchases American Golf made to replace items that were destroyed.
Illegal Trash Collector
Waste Management is the golf course trash collector, which is illegal under Chapter 5.14 of the Fullerton Municipal Code. Republic Services (aka MG Disposal) has an exclusive franchise to be trash collector in Fullerton. I received confirmation from both Republic Services and the City of Fullerton that Waste Management is prohibited from doing business here. Violations under FMC 5.14.100(B) shall be “punishable as misdemeanor or an infraction, at the discretion of the City Manager…” [emphasis added]
That’s wonderful! Now, Joe Felz can issue a citation to himself.
Purchase Card Abuse
The managers of the golf course have purchase cards to buy necessary supplies and equipment, the costs of which are reimbursed by the City of Fullerton. I think most expenditures are legit. Some most definitely are not.
- $475.00 for employees to attend the Monarch Beach Golf Club tournament in Dana Point, charged to Employee Relations.
- $159.82 for camera for golf course. May or may not be legit.
- $361.18 for business cards for Coyote Hills Golf Course. This is the entry that screams outright fraud. Coyote Hills GC is a different course entirely, also operated by American Golf, but NOT subsidized by the City of Fullerton. I thought maybe just the descriptor was wrong, but no, check the Txn Allocation in the righthand column: 270-80-53320 is not the Fullerton Golf Course.
Both managers buy gift cards for employees, and charge them to the City of Fullerton as operating expenses. In the documentation provided for FY14-15, I found $2067.05 of gift cards purchased.
See the gasoline expenses for bank trips? These fill-ups often occur in Huntington Beach or Corona, and listed for the same purpose. There’s no disputing that vehicle expenses are legitimate for business purposes, but not entire tanks of gas purchased 20 or 30 miles away.
Another item frequently listed is big dollar purchases for “Clubhouse Flowers”. Having seen the flowers around the clubhouse many times, I struggle to comprehend the expenses on these, which appear to have cost $3388 in FY14-15 if the purchase descriptors are accurate.
Take a look. I see lots of well-established shrubs and perennials, rose bushes, dwarf palm trees. What looks recently planted, even if replaced on a regular basis, could be bought very cheaply at Home Depot. Given the inappropriate charges for many other items, including business cards for Coyote Hills Golf Course, is it possible they’re buying flowers for Coyote Hills and charging them to the City?
The golf course superintendent goes to Stater Bros. down the street and purchases employee snacks and drinks, then bills the costs to the City:
Professional dues and events for American Golf managers (who aren’t compensated by the City) are also being billed as ordinary expenses. Why aren’t these expenditures being paid at American Golf’s discretion from the management fee they receive from the City — now approaching $700,000 annually — and not as an operating expense?
GCSAA EIFG (below) stands for Golf Course Superintendents Association of America, Environmental Institute for Golf.
National GM Conference at the Marriott in Anaheim:
Is this $579.00 for a personal PGA membership, or does it have something to do with the golf course?
How about this one, “bolts and rods” purchased at Office Depot.
Jay Lim Golf Academy
There’s a golf academy operating out of the Fullerton Golf Course. No big deal, right? Think again.
The City converted the Golf Course Lease to a Management Contract because, as a condition of the bonds and the interest subsidies paid by the Federal government, leases are not allowed. Under IRS rules, the rationale is that leases are “private business use”. The RZED bonds the City received to replace the golf course irrigation system strictly prohibit the bonds from becoming Private Activity Bonds.
A CPA who helped with some of the research expressed concern that the presence of the golf academy under a sublease could pose big problems with the IRS. If American Golf is not permitted to operate under a lease, neither would this golf academy.
How do I know the golf academy is operating under a sublease? Alice Loya told me so near the bottom of this e-mail (her reply is inred).
The City and American Golf have absolutely no authority under the Brea Dam Lease to sublease or otherwise permit Jay Lim Golf Academy to be there unless the Army issues prior written approval. Nevertheless, their presence at the golf course may well catch the ire of the Internal Revenue Service and drop the hammer over those irrigation bonds.
This section talks about Private Activity Bonds:
Definitions, tests, and remedial actions:
The Recovery Zone Economic Development Bonds are discussed here. Note the final sentences clearly say public projects and public infrastructure, not private activity.
Another reference that might be helpful is this training module from the IRS:
Maintenance Building Fire and Reconstruction
They did handle the claims and hired an appraiser to assess the damage. This resulted in the City having to pay the $250,000 insurance deductible in May 2015. The admissions by City staff in that link are disturbing because where does American Golf get the authority to spend the City’s insurance settlements as they see fit? This is a private corporation spending City money to buy City assets with no oversight.
The insurance money, including the City’s $250,000 deductible payment, is being hidden away in some private American Golf account and the reports to the City (required by Section 4.4, above) on claim activities, if any exist, have not been included in the monthly invoicing bundles.
Also puzzling is why American Golf received the money at all. Section 4.1 says the City of Fullerton shall be named as loss payee.
In fact, two of the items destroyed in the fire were Sod Cutters. Instead of using insurance payments to replace them, American Golf bought new ones from the operating expenses account, which constitutes double-dipping, if not fraud:
The Golf Course Equipment Inventory (dated August 20, 2015) shows only ONE sod cutter. I hope the other Sod Cutter didn’t end up down the road at Coyote Hills Golf Course…
And now, for something much worse. It appears that American Golf is rebuilding the maintenance building using the insurance settlement they received. There was NO Competitive Bidding on this project, as required by California’s Public Contract Code. To my knowledge, the City Council DID NOT approve the plans or expenditures, or even receive a briefing on their intentions.
I called Public Works at City Hall a couple months ago and was told that Parks & Rec is handling this project. And just to be clear, despite the repeated insistence by City employees, this is NOT a shed. Sheds don’t have cinder block walls, 200-amp electrical service, and air conditioned office space.
Progress on the building as of November 1, 2015:
It should be noted that I called the California Department of Industrial Relations https://www.dir.ca.gov/ and explained in great detail what was going on here without divulging the location or city name. They called me back a couple hours later after talking this over with their legal counsel. Nobody was aware of any exception in the law that would allow Fullerton to do this without competitive bidding. At that point, they gave me the name/number of a local contact person to start an investigation. And, no, I did not follow up.
Other Projects without Competitive Bidding
The maintenance building reconstruction is not the only instance where the City failed to obtain competitive bidding.
In 2014, netting along the golf course needed to be replaced. The building permit estimated the value at $140,000 but there’s no evidence of any informal bidding process used to find the lowest bidder. Actual cost was approximately $160,000.
It would appear they simply called up the contractor previously used in 2007 because the name matches in both places. They didsolicit competitive bids for the 2007 project.
More recently, American Golf paid $39,602 to a contractor named Eagle Golf Construction. The payments were split 50/50 between May and June.
What project was this for? Did it qualify as a “Major Capital Improvement” as described below? Was it something that needed US Army Corps of Engineers approval? All of these things are impossible to know when everything is done in secrecy.
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What lesson can be learned from all of these problems? Private businesses doing favors for government — and vice-versa — all but guarantees corruption and fraud, with the end result being zero accountability on each side.
It’s up to the residents of Fullerton to prevent this from happening again.
The Fullerton Tennis Center is, for the most part, pretty well managed. I think this is a credit to Dave Mann, the manager/coordinator of the Tennis Center.
Revenues and expenditures can be viewed in the Brea Dam Accounting Ledger under the 42528 Tennis Center account. Use the bookmarks panel on the left side, if available. Otherwise, scroll down to page 77.
One major problem exists with the compensation given to a part-time tennis coach/instructor. Put very simply, in FY2014-15 he was paid $128,898.81 as an independent contractor. Scroll down to pages 112-113 to see for yourself. This doesn’t include health insurance or pension benefits, but on the basis of gross wages alone, his compensation is nearly identical to the Director of Parks & Recreation, Hugo Curiel.
I have nothing against Mr. Matek whatsoever. But I can’t remain silent on this given the budget deficit facing the Tennis Center. His payments of $128,898.81 account for 40.8% of the revenue and 39.6% of expenditures for the Tennis Center.
The next highest compensated person at the Tennis Center is Dave Mann, whose gross wages were just shy of $52,000 over the same period.
You may have noticed on pages 112-114 of the ledger some entries highlighted in yellow and partially redacted with titles such as “Internal Revenue Service Tennis” or “Internal Revenue Instr Earn”.
I inquired with Julia James, Director of Administrative Services and our City Treasurer, what was going on. She responded that it was a Wage Garnishment and that the details were confidential. That’s fine, I have no interest in other people’s personal financial problems. That’s why I decided to redact the person’s name on those pages.
There’s still one problem remaining, unfortunately. The person whose name I redacted is NOT a City employee and didn’t receive any compensation from the Brea Dam fund. The person’s name didn’t appear anywhere else in the ledger, so I brought this to Ms. James’ attention. I never received any response.
The Fullerton Community Nursery School and Child Guidance Center are 501(c)(3) non-profits that occupy space on Youth Way, on the east side of the road as you head toward the YMCA from Valencia Mesa. They are easy to overlook.
Over the years, the organizations had difficulty keeping up with property maintenance which prompted the City to step in and perform various repairs. In 2009, Parks and Rec Director (and current City Manager) Joe Felz negotiated a new lease with both organizations, saying this “would not be revenue-producing like the Summit House rents.”
The new contracts were set up according to the following spreadsheet, incorporated into the contract. Notice they made specific allocations to Maintenance, Improvements, and Admin Costs.
The Brea Dam Accounting Ledger shows the revenue received from both organizations. It’s easy to correlate because the dollar amounts shown below match the above table for years 6 and 7. The contract entered its 7th year in June 2015 and the rents charged to both organizations increased accordingly.
Total rent collected is shown on the final line: $81,479.
Pages 57-58 of the Brea Dam Accounting Ledger show the actual allocations made for Maintenance and Improvements which are significantly less than promised in the sublease:
Combined, they allocated (set aside) $15,430 and $16,230 for maintenance and capital improvements, for a grand total of $31,660. The amounts required by the lease to be allocated for Maintenance and Capital Improvements over the same period was $77,955.
The City’s fiscal year runs from July to the following June. Some math is necessary to convert the rental payments to match the City’s fiscal year.
|Year 6 spanned 11 months of FY14-15 (July 2014 through May 2015):||Year 7 (June 2015 only):|
|$5,766 (11 months) + $714 (11 months) = $71,280||$5,939 (1 month) + $736 (1 month) = $6,675|
$77,955 — $31,660 = $46,295
This is the amount ($46,295) that was misappropriated and used for other purposes such as the golf course, tennis center, sports complex, etc. The $31,660 that was allocated to Maintenance and Capital Improvements was moved to citywide Internal Service Funds and not kept within the Brea Dam Fund. If held there, or used for purposes other than the Brea Dam, that violates the terms of the Army lease.
To be sure I was reading the ledger correctly, I contacted Julia James for clarification. My e-mail to Julia somehow landed in Alice Loya’s inbox and the replies came from Alice (not Julia). Their reply is in red and was re-sent a short time later with a correction in green.
Bottom line: Depending on how you look at it, either $46,295 or the full amount of $77,955 was misappropriated in FY 14-15 (if the latter was co-mingled with citywide funds). Possibly even more money was misappropriated than the reply indicates because they say the allocations include park restrooms as well.
Mr. Felz, these non-profits depend on donations from generous donors and working-class families in order to make ends meet. It was you who made the promise this lease “would not be revenue-producing” and you also knew they were 501(c)(3)’s with limited funding sources.
It is disgusting on many different levels that Mr. Felz would allow this to happen.
The Brea Dam lease includes other facilities open to the public.
Incorporated into the YMCA’s 2007 lease is the US Army Corps of Engineers lease, DA-04-353-CIVENG-60-123 with the City of Fullerton, dating back to 1959. That lease was superseded and made void by the new (and current) lease and supplements beginning in 1967. They did this with Condition 28:
Although the City Attorney or City staff(?) included the lease supplements to the current lease, they have no meaning in the context of the 1959 lease which was also included. In short, the City is holding the YMCA to the terms of the wrong Army lease.
Alice Loya from Parks & Recreation told me the City doesn’t request approvals from the Army Corps of Engineers. (her reply is in red text)
If true, that is a problem because the YMCA doesn’t have a legal right to occupy that space under Conditions 3 and 23 of the Army lease.
I didn’t find any instances of YMCA money disappearing at the hands of the City, but that’s because the City gives them a $1/year lease as a non-profit who performs their own maintenance.
Chances are you know the location if the name doesn’t sound familiar. This is the golf driving range located on Harbor Blvd. south of the YMCA and immediately north of the AAA Club office. Since construction in the early 1990’s, it has had numerous owners and business names including Fullerton Golf Training Center Partners, Community Golf, Harbor Golf LLC, and Golfer’s Paradise.
The sublease and its amendments carry the same problem as the YMCA lease in that references to the outdated and superseded 1959 lease also exist.
Fixed minimum rent is $1,500 per month. Percentage rent is calculated by taking 12% of golf fees and 4% of pro-shop and food sales, and then subtracting the $1,500 minimum. Any amount in excess is payable to the City.
And below is their Percentage Rent calculation over the first quarter of 2015.
The $4,500 of minimum rent had already been paid, so they owed the City an additional $1,934.84.
Golfer’s Paradise is responsible for paying all utility bills and for improvements to the land.
St. Jude Shared Parking Lot
The free parking lots on the south side of St. Jude Medical Center, near the Tennis Center and YMCA were reconfigured as paid parking in 2011 — under the control of St. Jude. In FY2014-15, the City received $39,148 in their share of the net profits.Agreement with St. Jude for Shared Parking Lot (2011)
Parking availability in these areas (especially Tennis Center) had been problematic for a very long time, but it was the byproduct of St. Jude charging fees to park in their own lots, in addition to not having enough parking spaces of their own. People used the City’s free parking instead. When you stop to realize that St. Jude was the root cause of this inconvenience, does it make sense for the City to hand over our free parking to St. Jude, have them convert it to paid parking, and allow St. Jude to share the profits? I would argue no.
The fact that St. Jude agreed to fund all costs of the shared lot is quite telling because users and employees of the City’s various facilities are eligible for free parking validations, and thus, contribute no revenue, at least in theory. The only reason St. Jude would agree to such terms is because this arrangement benefits St. Jude far more than it does the City. Without this deal, St. Jude would need to spend millions constructing another parking structure.
You may be thinking, so what? This is a win-win. St. Jude pays all the costs and shares the profits. Users of the City facilities get their parking validated for free. The City comes out ahead every year and doesn’t have to maintain the lots anymore. Practically speaking, and in this isolated instance, I think you may have a point.
The problem is in principle because once arrangements like these are deemed successful, they tend to spread elsewhere, especially when revenue is generated for the City. Take the same arrangement and apply it to downtown public parking lots with restaurant owners taking the place of St. Jude. How would you feel if the public parking lot you’ve long used free of charge became a paid lot with the sponsoring restaurants/bars being allowed to share the profits? I think we would be unanimous in our disgust for such an arrangement.
But that’s essentially what happened with the St. Jude deal.
Fullerton Sports Complex
The Fullerton Sports Complex sits on the eastern edge of the Brea Dam leased land. Fullerton sponsors various youth leagues around the area by allowing free use of the field or with deep discounts on the user fees. I think this is a good thing. Other Brea Dam revenue should be sufficient to cover costs of the Sports Complex IF the City manages the money properly, which they aren’t doing too well at the moment.This is where I encourage all moms, dads, coaches, and others involved with youth sports to pay close attention to Parks & Rec finances and be prepared when the City comes to you and says fees must be increased. This applies whether your child plays at the Sports Complex or elsewhere throughout the City. Ask to see detailed financial records such as accounting ledgers before relying on any assertions made.
While there’s no smoking gun in the ledger pictured below, not everything is beyond reproach either. Do the dollar amounts make much difference in the big picture? Probably not, but this is only for one year in the Brea Dam fund and most sports fields in Fullerton are expensed to other funds.
Take for example the first highlighted entry. Power edger blades are without question legitimate expenses. But does the Fullerton Sports Complex really need 50 blades? Was the $7000 of mulch charged to this account by mistake, or were Brea Dam funds used to pay for mulch used elsewhere in the City? Master padlocks are also legitimate expenses, and the City probably has thousands of them around the City. No matter how many locks were purchased, what are the odds the cost was exactly $1000.00?
The $4,429.60 for the “Fullerton Sports Complex” is probably legitimate too but the description offers no insight into what for. The leaf blower is probably used throughout the City, and the $3695.75 of “hoes, rakes, reachers, and shovels” likely accounts for other items not described, or maybe a large purchase for the entire department.
The City allocates vehicle replacement and maintenance costs to the relevant funds for vehicles used by different departments. There is nothing wrong with this practice, but the question always should center around whether the amounts are fair. Yes, the maintenance staff who work at the Sports Complex have City trucks that need replacing from time to time. These amounts may also include tractors and riding lawn mowers. So, is it fair to charge $26,730 and $10,980 to the Brea Dam Fund for this purpose? I don’t know.
The moral of the story here — in terms of sports field use and user fees — is to respectfully ask the City to prove the legitimacy of any fee increase. Relying solely on City Council or Parks & Recreation agenda letters and/or Powerpoint presentations may not provide you with accurate information. Ask for proof. Ask for accounting records. Test their reasoning. This is the only way to ensure you’re not being taken advantage of.
These are the PDF files referenced on other pages.
US Army Corps of Engineers
City of Fullerton
Series A Bonds for the Golf Course Irrigation Replacement
Golf Course $250,000 insurance deductible (May 2015)
Relevant Parks and Recreation Meeting Minutes:
There’s actually dozens of e-mails inside these files:
Fullerton Golf Course
2015 Annual Plan — American Golf
Agreement with American Golf to construct netting (2007)
American Golf Request to Raise Rates (2007)
Irrigation System Replacement Contract Award (2011)
Restaurant and Pro-Shop Inventory purchased from American Golf
Kurihara America Inc. Chapter 7 Bankruptcy
Golf Course Equipment Inventory 8-20-2015
American Golf Invoicing Bundles:
St. Jude Shared Parking Lot