Malice In Blunderland?

“Sentence first, verdict afterwards.” — The Red Queen, Alice’s Adventures in Wonderland

On Oct. 10, with only 24-hours notice and no public evidence, the Port of San Diego Harbor Commission censured its vice-chair, environmental justice activist Sandy Naranjo, going even further to strip her of all her offices and power, the first such action ever taken in the board’s 61-year history. This came just a few months before she was due to become commission chair. They even claimed it would be illegal to share any evidence.

According to Narnjo’s lawyer, citing a 1941 case, Conover V. Board Of Equalization, the commission has no such power under law. In contrast, the port’s lawyers cited Braun vs. City of Taft, which they apparently had not read. “Because it’s a public records case. It’s not a censure case,” her lawyer, Cory Briggs, told the commission. “It doesn’t deal with whether there’s authority for censure or not.”

Random Lengths News read the opinion, and can confirm that Briggs is correct. Censure was mentioned, but the power to censure was never questioned or addressed. Briggs also challenged their power to impose punishment, which goes beyond mere censure. The port offered no legal support at all for such a power, even when pressed repeatedly by this reporter.

So the entire proceeding was an Alice-In-Wonderland house of cards. But why?

The unanimous majority of dozens of hastily-assembled public commentators was clear: it was because of who Naranjo was, who she fought for, and what she fought against — an unaccountable port responsible for generations of profound community public health harms, rooted in environmental racism.

“We can do whatever we want, right?”

Naranjo represents National City, the poorest, least white (10.4%) of the five cities represented on the board. As a community-based activist, she stands in stark contrast to the rest, consisting of three lawyers and three current or former real estate executives.

“I would feel uncomfortable approaching any other commissioner on the board, because I never see them canvassing the neighborhood or attending community meeetings,” said University of California San Diego Ethnic Studies Chair Alberto Lopez Pulido, a sentiment echoed by residents, city officials and activists alike.

“The resolution talks a lot about transparency and public trust. The process, or lack thereof, of this censure is a breach of public trust, and is completely lacking in transparency,” National City resident Angelika Estrada said in public comments. The board’s insular institutional lack of self-awareness is staggering. And it’s not like they’ve never been told. Their lack of democratic accountability has been the subject of three civil grand jury investigations, in 1986-1987, 1997-1998, in 2022-2023. The last was released on June 7, four months and three days before the board censured Naranjo. That report began thus:

“‘We can do whatever we want, right?’ The words were spoken — and repeated several times — by a commissioner of the San Diego Unified Port District during a public meeting of the Board of Port Commissioners. A Commissioner went on to describe what was believed to be ‘the absolute sovereignty of this board to make any decision that we want from this dais at any time.’”

The report expressed “concern over the lack of oversight, transparency and accountability,” and that’s exactly what the board exhibited in censuring and removing Naranjo’s powers.

More than that, the board’s action would have the exact opposite effect of what they claimed, as various commentators were quick to point out.

“This very lack of transparency was exactly what the recent grand jury recommendations cited as eroding public and member city’s trust in the port commission,” said Laura Wilkinson Sinton, cofounder of Stopthesewage.org.

“The censure removal would have a chilling effect on transparency and trust in the port and its communities,” said Laurie Tamlin, on behalf of the Coalition for Clean Air.

“The manner in which this situation has been handled has literally poisoned the well and angered the communities of the port,” said Dee Wittermiller, of San Diego 350.

“This process threatens the progress National City has made, [and] tarnishes the slowly developing trust between the port and National City residents,” said Kelsey Genesi of the San Diego-based Environmental Health Coalition.

“We were totally blindsided by this,” National City Councilmember Marcus Bush said during the hearing. “It feels like a coverup. It feels like you’re hiding something.” But he had no idea how deep the coverup goes. At the heart of the matter was Naranjo’s challenge of Port Attorney Tom Russell’s potentially conflicted handling of a contract for an emissions control system — the substantive details of which were never examined. If they had been, deeper questions would have arisen regarding the beneficiary: former LA Harbor Commission President Nick Tonsich, a long-time beneficiary of no-bid contracts (worth $1.25 million) and sweetheart deals according to a May 10, 2005 Los Angeles Times report. The two men became close friends while Russell was LA’s port attorney.

One thing is clear. “This is not about Sandy,” Bush said. “This is about National City, and us being discriminated against for decades. Environmental racism, that’s what this is about.”

A parade of activists and community members agreed in public comments, as did Briggs. “National City has been removed from leadership opportunities,” he told Random Lengths. “Given how the port has allowed its chairs to advance their priorities, denying this opportunity to Commissioner Naranjo is a serious denial of opportunities for National City. Sadly, it is consistent with the decades of exploitation of lower-income communities by the port.”

The Nothingburger Report
When the report finally was released, in response to unrelenting pressure, La Prensa San Diego publisher Arturo Castañares called it a “Nothingburger Report,” offering a detailed critique, but even he missed the deeper coverup. He did note that Naranjo’s complaints of discrimination by Port Attorney Tom Russell were “beyond the scope of this investigation,” according to the report, even though the entire focus was on how badly she had supposedly treated him. The report painted this as retaliation for Russell’s conflicts of interest investigations, all of which turned up empty.

The report dismissed Naranjo’s claims of discrimination by noting that Russell hadn’t discriminated against other board members who were non-white or lesbian. But “he didn’t discriminate against anyone else” proves nothing about how he treated Naranjo, particularly since she, unlike the other commissioners, is a passionate advocate for her nonwhite community, who’s challenged the port like no other commissioner.

“Commissioner Naranjo has always been accessible and willing to listen and support our concerns and grievances, coming from communities that rarely have a voice in long-term decisions of the port,” said community activist Josephine Telemantez in her public comment. It’s precisely such advocates who are most likely to face discrimination.

In his “Nothingburger” column, Castañares broke the report down into three parts:

The port investigated unsubstantiated claims that Naranjo and her husband had a business that created conflicts-of-interest; that Naranjo raised issues about the port’s lawyer during a performance review; and that Naranjo failed to give her colleagues and the lawyer a heads up that she had concerns about his performance.

That’s it. Naranjo’s great sin was raising unexpected issues in a performance review. Which is kind of her job.

The falseness of the conflicts-of-interest accusations played no role in the report’s analysis. Only her tardiness and irritation in responding. The substance of the accusations were glossed over with the false assumption they were baseless, and the claim that making them constituted “slander per se” which the port could be held liable for — even though they were made in a closed meeting, where no one heard them except for people fiercely sympathetic to Russell.

Calling it a “nothingburger” may have been too generous. An “embarrassmentburger” might have been more apt.

The Deeper Coverup
The deeper coverup involves Russell’s relationship with former Los Angeles Harbor Commission President Nick Tonsich — dating back to when Russell was POLA’s port attorney, and his failure to disclose legal problems surrounding Tonsich’s emissions capture system — which has also had profound operational problems as well. And this coverup involves a state-wide web of precisely the charges that were brought against Naranjo in the censure motion, claiming she “breached her duty of care,” “acted with an absence of transparency, and “breached her fiduciary duty of loyalty.”

The focus of Naranjo’s concern was an undisclosed lawsuit between Tonsich and the Pasha Group, which owns the Port of San Diego’s largest terminal. Further complicating matters was the fact that Pasha also bid on the same contract. When the Rose Foundation, an outside nonprofit, sought to examine the respective bids, the port refused to comply with a public records act request, opaquely citing several sections of Public Record Act code, claiming they were not releasable.

But in doing so, they actually violated one of the sections cited, Section 6255, which says, “The agency shall justify withholding any record by demonstrating that the record in question is exempt [emphasis added] under express provisions of this chapter.” But they did not demonstrate any such thing. They simply claimed an exemption without explanation. When Rose Foundation President Jodene Isaacs reached out to Naranjo for help, that was the first inkling Naranjo had that something was amiss.

“Naranjo explained that she wanted to bring this matter to the Board to ‘explore and investigate’ and get ‘straight’ to the bottom of it without making it ‘a bigger deal,’” according to the report. But getting to the bottom of it could have unearthed a much broader picture of deceptive practices and failed promises. (Full disclosure: Tonsich unsuccessfully sued this reporter for slander, the only such suit in 29 years as a journalist. He narrowly escaped a counter-suit.)

The report states that “the General Counsel’s staff confirmed that CAEM’s technology had been approved and not fraudulently conveyed,” but the underlying reality is quite different. Tonsich is a notoriously aggressive litigator. The aforementioned LA Times investigation cited two early lawsuits. First, “Tonsich sued the Los Angeles Unified School District after he collided with a basketball pole and broke his ankle during a pickup game at an elementary school. He asked for more than $1 million,” a ludicrous amount even if the district somehow were to blame. Second, he and his mother “sued a Rolling Hills couple who decided to sell their house to other buyers.” Such nerve! Tonsich dropped the first case, and the second was thrown out, but he’s only grown much more tenacious over time.

A source close to Pasha previously informed Random Lengths that Pasha dropped its lawsuit because it wanted to concentrate on its core business, and avoid public controversy — an incentive structure dramatically at odds with Tonsich, who’s repeatedly relied on aggressive litigation in his business dealings. Thus, relying solely on the outcome of lawsuits — whether they were dropped, how they were settled, etc., without looking into the underlying allegations, and evidence supporting them — provides a highly skewed picture of what is going on.

While the Tonsich contract remains in place in San Diego, Los Angeles activists continue to challenge a California Air Resources Board executive order certifying an iteration of device that completely failed to meet its performance goals — and which was funded via a round-about process overseen by former POLA Environmental Manager Chris Cannon, who has been mysteriously relieved of duty as this long-buried issue has recently come to the fore, as CARB has agreed to an online meeting Nov. 1 with activists that Cannon — but no other POLA official— had agreed to attend.

That iteration, the Shorekat system, was an on-dock version of an earlier barge-based system, which was supposed to also reduce greenhouse gases. It would do so in three ways, Cannon told CARB. But it never did. In fact, it increased greenhouse gases, while failing to meet a wide range of other performance requirements — it wasn’t even able to move out of the way, so other operations could take place.

At $3.5 million, the Shorekat system was the most expensive component of Pasha’s “Green Omni Terminal,” which was only legal because Pasha included it — had it come from the port, an earlier LA Ethics Department determination would have forbidden Tonsich from participating. But at the time, Pasha’s LA terminal was being run by Jeff Burgin, Tonsich’s partner in an alleged kickback scheme, according to Pasha’s lawsuit that was subsequently dismissed. Burgin was accused of basically giving Tonsich $3.5 million of taxpayer money for a system that never worked. By looking only at legal outcomes — at process results — and not underlying substantive evidence, it’s possible to argue that there’s nothing corrupt going on here. And—in addition to the environmental racism — that’s precisely the problem with the Port of San Diego’s entire approach.

Where Things Stand
On Thursday, Oct. 19, National City condemned the port censure as “drastic and draconian.’ The city council said the port commission perpetuated “longstanding patterns of disenfranchising National City and its people.” A news release from interim City Manager Ben Martinez elaborated:

The timing of this action, just as National City was poised to take an active leadership role with the ascent of its Commissioner to the chairmanship of the Board of Commissioners, is of great concern. We find the board’s explanation for their timing to be severely lacking, and its decision to take such drastic and draconian action very disappointing.

He also blasted the board for denying Naranjo a leadership role “to which National City is entitled in the rotation of chair between the Port’s five member cities.”

The port continues to be unresponsive. The port commission’s current chairman, Rafael Castellanos said in a statement that “National City continues to have a voice and representation at the port. Commissioner Naranjo remains a member of the board with the ability to vote, consult with staff and meet with the public,” but did not address the stripping of her powers — which, again, appears to have no foundation in law, as the port has offered none when repeatedly asked by this reporter.

Naranjo herself has no plans to sue to regain her powers, according to Briggs. Random Lengths has asked National City the same question, but has not heard back by press time. On the one hand, both the law and the injustice seem clear. On the other hand, fighting the port — and even winning — may only make things more difficult for National City.

This is reflected in National City’s release, which noted it “remains committed to the work at hand and will seek to remedy its collaborative relationship with the Port to advance our shared interests and efforts, most importantly of which are the implementation of the National City Balanced Plan, addressing overdue corrective actions that negatively impact the health of our residents, and working toward the day when we will have more equitable access to our maritime areas.”

That’s a perfect encapsulation of how a traditionally excluded community is forced to choose between fighting full-out for justice, and trying to act cooperatively with its oppressors in order to make any progress at all. And that is yet another reflection of the kind of power Naranjo was fighting against.