INVESTIGATIVE REPORT Complainant: Barbara Buikema Employer: City of Carmel-by-the-Sea ("City")

Brief Synopsis

On December 17, 2015, City resident Barbara Buikema emailed Mayor Jason Burnett to inquire about City employees constructing a berm at or near her neighbor's property on Acacia Way which she described as "a private lane." Buikema noted that the property belonged to City Council Member Victoria Beach.

Witnesses Interviewed

The following witnesses were interviewed (in alphabetical order):

Victoria Beach, City Council Member Barbara Buikema, resident of Acacia Way Michael Calhoun , Police Chief and Interim City Administrator Robert Culver, Public Works Superintendent Jesse Garibay, Street Supervisor Lori MacPherson, resident of Acacia Way Robert Mullane, Public Works Director

Factual Summary

Barbara Buikema

Barbara Buikema and her mother Joan Buchanan have lived on Acacia Way for over 20 years. She describes Acacia Way as a private lane which means that the City does not provide any services to it.1 Buikema's home suffered substantial flood damage as a

1 The County of Monterey Assessor's Map (Attachment E) for this road includes a notation reading "20 R/W 176" which seems to reflect that there is a 20 foot wide right of way that travels for 176 feet along Acacia. (Attachment E) No employee or resident is aware of this map notation, and all have treated Acacia as a private road for several decades. For purposes of this investigation, Acacia Way is considered a private street.

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result of the 1997 El Nino storms. When she asked the City for assistance, she was told that because Acacia Way is a private road, she would have to shoulper the costs alone. She says that the repairs for the 1997 storm water damage required her to obtain a "six figure loan" which she is currently repaying. She also reports that about 7-8 years ago she patched the paving in front of her house, and that the entire lane now needs new paving.

On the morning of Thursday, December 17, 2015, Buikema's mother called Buikema from their home to report that a city crew was working across the street at the residence owned by Councilmember Victoria Beach. Ms. Buchanan was concerned because she knew that Acacia Way is a private road which has never received street or maintenance services from the City and because the work was being done at the home of a City councilmember.

Sometime after 11:00 a.m., Buikema drove home from work to see what was happening on her street. As she neared Acacia Way, she passed a City Public Works truck leaving the street with three City workers inside. In front of Beach's house she saw a newly constructed asphalt berm. While she was there, she observed a truck owned by a private landscaper drive over the berm and damage it.

Buikema attempted to call the City Public Works Department to obtain information about the work, but was told by Yvette Oblander, the clerk in Public Works, that no one was available to talk to her. Buikema attempted to call the City Administrator who was also not available. At 1:53 p.m. on the 17th Buikema emailed the Mayor to inquire about the City performing work on Acacia Way. (Attachment A) Mayor Burnett referred the matter by email to the City Attorney and Interim City Administrator informing her that she would be contacted once there was more information. (Attachment A).

Buikema reports that later that day she received a call from Rob Mullane, Public Works Director, who was on vacation. She relates that Mullane told her that the mistake occurred because there are "new employees" who didn't know that Acacia Way was a private street. Mullane also told her that the berm had been removed. When Buikema returned home around 6:30p.m. on the 171h she observed that the berm at the Beach property had been removed and replaced by sand bags.

Lori MacPherson

Lori MacPherson lives in the house on Acacia Way directly to the south of Beach's house. MacPherson's late husband purchased the home in 1976, and she has lived there since 1993. She says that Acacia Way has always been treated as a private

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road and that there is a sign reading "private drive" on Flanders at the top of the hill at the entrance to Acacia.

On the morning of December 17, MacPherson saw a City Public Works crew arrive at the Beach property and park the City truck in front of her home. She did not know why they were there or what work would be done. She had not received any notice that work would be done on her street which she normally receives when an agency or utility needs to do work that will interfere with the residents' access.

MacPherson called Buikema at her employment to tell her that a City crew was working on Acacia and appeared to be filling in holes near the Beach property. MacPherson left her property that morning to run an errand before the crew left.

MacPherson confirmed that by the end of the day (December 17), the berm at the Beach property had been removed and replaced by sandbags.

Jesse Garibay

Garibay has worked in the Public Works Department for 21 years and was recently promoted to the position of Street Supervisor.

He says that in anticipation of El Nino storms, the City is maintaining a "berm list" for berms to be built to prevent storm runoff damage. Garibay's supervisor Rob Culver creates and maintains the list, and Culver schedules when the berms will be constructed. Garibay receives his assignments from Culver and supervises two crew members. When the crew completes an assignment, Garibay verbally notifies Culver.

Garibay reports that in November 2015 he was constructing a berm in front of the Knapp property at the corner of Flanders and Vizcaino. While there, Victoria Beach approached him and asked if the City would take care of a runoff problem on her property. She said that run off onto her property was eroding the dirt and exposing her driveway which is unpaved. Beach told him that she had previously spoken to Culver about this problem.

Garibay followed Beach to her property on Acacia Way where she showed him the problem. He says that across the street from Beach's property, a 3 or 4 foot "bump" jutting out perpendicularly from a berm is directing water towards Beach's property. Garibay said that Beach also showed him the small drain at the bottom of Acacia that was clogged with debris.

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Garibay says that later Culver assigned him to construct the berm on Acacia adjacent to Beach's house. Though he does not recall the date of the work, he knows that it was a Thursday after Thanksgiving.

Garibay said his crew constructed a small cold mix asphalt berm of about four to six inches next to the driveway at the Beach residence, and the three man crew worked about 2-3 hours ("from 9 to 11 or 11 :30"). With him were Jaime Aquino and Fabien Villela, a temporary employee.

Garibay says that the crew could not finish the berm that morning because they had to return to the Yard to attend a meeting with Greenwaste. The crew did not have time to compact or "roll" the berm. Although Garibay and his crew put away their tools and vehicles, they intended to return to finish the job after lunch.

Garibay says that when he got to City Hall, he received a call from Culver telling him not to continue with the work on Acacia. He says that Culver said he needed more information and needed "to research" the matter. At the conclusion of the Greenwaste meeting, Culver told Garibay to remove the berm on Acacia. He and his crew, this time including Michael Fair, returned to Acacia and shoveled out the cold mix which had not yet set. Garibay says that Ms. Beach came out of her house to ask what was happening, and Garibay told her that a neighbor had complained. She asked the name of the neighbor, and he told her he didn't know the neighbor's name or any of the details of the complaint. Garibay says it took about one hour to remove the cold mix, most of which could not be reused.

Garibay says that the crew did not change the grade of any property on Acacia. He says that he used the backhoe only to remove the berm and, in fact, because the asphalt had not yet set, a backhoe had not been necessary.

Garibay says that the City did not put sand bags on the Beach property. Beach asked him about sand bags, and he saw her filling sand bags.

Garibay was aware that Acacia Way is "a private cul-de-sac," but he did not ask Culver why this work was being done by the City. He says that he didn't know any details about how this work was planned or what was discussed. He says the Department has been very busy in responding to the winter storms, and that "it never dawned on him" that this was a problem.

Garibay explained that he did the berm construction and removal work on Acacia at the direction of Culver who told him that Mullane had authorized the work. Garibay and

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Culver share an office. Garibay says that Culver showed him an email dated November 19, 2015, in which Mullane authorized the work requested by Beach with notice to Chief Calhoun. (Attachment C) Garibay says that the work was approved by Mullane and Calhoun.

Garibay says that Beach's property "happened to be" on the berm list, and they were waiting for Mullane to authorize when the work would be done. Garibay believes that this work was approved because it would prevent flooding from City runoff.

Garibay says that Beach also reported that the Acacia storm water drain, located below Acacia in a canyon or creek, was "overgrown." He says that this drain is also located on private property.

Garibay says that in his 21 years with the City he has never done work on private property. He says that .he thought that the City was working on Acacia because the flood waters were coming from Flanders, a City street.

Robert Culver

Culver has worked in the Public Works Department for 21 years and was promoted to Public Works Superintendant in October 2015. Culver maintains a "berm list" of city properties requiring a berm, and he schedules the Public Works crews to perform the work off that list. This list is separate from the Department's Customer Service Request List (Attachment D) although requested berms are included on the Customer Service Request List.

Culver reported that Victoria Beach had sent an email to Rob Mullane requesting assistance for a disabled neighbor, Nancy Knapp, who was having difficulty accessing vehicles near her home at the corner of Vizcaino and Flanders because of the condition of the street paving. (Attachment B) In an email dated November 16 to Mullane, copied to Culver, Beach asked that staff notify her when they meet at the Knapp property so that she can point out "a nearby weather runoff issue."

Culver met with Knapp at her property on November 17, 2015,2 to review the situation, and later placed this address on the street repair list. Beach was present at the Knapp property, and she asked Culver to view her property on Acacia which is off Flanders. Beach showed him erosion near her dirt driveway caused by storm water runoff from

2 The City's Customer Service Request Log item number 15156 reflects that Rob was meeting with Knapp on November 17,2015, at 3:30pm.

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Flanders. Culver told Beach that Acacia was a private way, but he would talk to his supervisor, Rob Mullane, about whether the City could assist with this problem.

Culver says that in the case of a berm requested on a public street or right of way, he would not have needed to talk to Mullane before placing the address on the berm list. In his 21 years with the City, he has never seen the City perform work on private property. In this case he wanted to be polite and show "follow through." Culver could not explain why he didn't close off the conversation with Beach at that initial meeting by explaining that the City cannot provide services to private roads nor could he answer why he felt the need to "follow through" with a request that he thought could not be approved.

Culver spoke to Mullane about Beach's request. Culver says that Mullane gave him no answer at that time.

Culver assigned Jesse Garibay and his crew to perform the street work adjacent to the Knapp property. The City's Customer Service Request Log does not include the date when this work was completed; however, an email from Beach to Culver indicates that the street work near the Knapp home was completed on November 18,2015. (Attachment C)

Culver says that Jesse reported to him that while he was working in front of the Knapp house, Victoria Beach arrived and asked him to view the water runoff problems on Acacia. Culver said that Garibay believed that a berm could be constructed near the Beach driveway to reduce the erosion affecting her property. According to Garibay, Beach was requesting that the City construct this berm.

Later that day, Culver received an email from Beach noting that she had spoken to Garibay that day, that she had shown Garibay "three city drainage paths that are being affected by the debris-filled street water running down Acacia" and that there was "some significant clogging in at least one of the pipes and some sloping issues near another outfall area." (Attachment C) She noted that Garibay had "some ideas about how to place asphalt berms to reduce this debris problem in the winter storms. I just wanted to alert you to that component of the run-off problem so that you can factor it into department decisions about the repair list."

Culver mentioned this request again to Mullane, asking how he should respond. Culver says that Mullane told him to tell her that the City would get to this work when it was able. Culver recalled that his conversation with Mullane occurred the week before

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Thanksgiving and that Mullane told him to tell Beach the work would be done after Thanksgiving but without a specific date.

On November 19, 2015, Culver emailed Beach that her property had been added to the berm list and copied this message to Mullane who responded "Nicely done." (Attachment C) Earlier that day Culver received an email from Mullane that he had informed Mike Calhoun about the work. (Attachment C)

Culver added Acacia to the berm list, and on December 17, 2015, directed Garibay and his crew to do the work adjacent to the Beach property. Culver says that he may have shown Garibay the email from Mullane authorizing the work, but he really does not recall. Culver says that it is possible that he showed Garibay the email because he (Culver) was so surprised that the work was being authorized.

When asked if he felt uncomfortable assigning Garibay to do City work on private property, Culver answered that at that time he believed that Mullane was approving the berm on private land because the storm water was running off a city street (Flanders). Culver also noted that he had been told that the Interim City Administrator Calhoun was aware that this work would be put on the City's repair list.

Culver noted that the Acacia drain is also on private property, but the City has historically cleared debris from it because storm waters impact the runoff that goes to Mission Hills Park. Culver says that the City inspects all drains once a year, whether or not they are on public or private property, and he believes that the City cleaned the Acacia drain in Fall 2015.

Culver says that on December 17, 2015, Yvette Oblander called him in his office to report Buikema's complaint. Culver called Mullane who was on vacation. Mullane told him to continue the work, and they would deal with the problem on Monday when he was back in the office. Culver was not comfortable with waiting and urged Mullane that the City take action that day to which Mullane agreed. Culver then directed Garibay to remove the berm. Culver says that Victoria Beach called him to ask why the "beautiful berm" was being removed, and Culver explained that there had been a neighborhood complaint about public work being done on private property. Beach asked who the neighbor was, and Culver told her it was a woman named Barbara.

Culver met with Mullane the following week "to sort things out." Mullane told him that he (Mullane) misunderstood that Acacia Way was a private road and that Mullane thought the repairs would be done on a public right of way. Mullane also told Culver

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that he needed to "push back" in the future and talk to Mullane if Culver believed Mullane was going in the wrong direction.

Culver never spoke to Buikema and never saw the berm that the crew constructed. He recalls seeing a udiverter" on the berm across the street from Beach's property, but he cannot identify which house is responsible for it.

When asked if he was aware of other private property owners requesting help from the City for water flowing down from a public street, Culver mentioned the corner of San Antonia and Ninth where storm waters jumped a City berm (on public right of way) and caused flooding. There, the City raised the berm and added sandbags.

Robert Mullane

Mullane has been the Public Works Director for 5 months. Since arriving in the department, Mullane instituted a policy that all citizen requests be tracked on a chart called the Customer Service Request Log. (Attachment D). The Log shows the date of the request, location and nature of the request, date closed, person who received the assignment, whether customer followup was completed, and pertinent notes.

Mullane says that storm preparation was a major priority for the Public Works Department this year. Announcements in the local newspaper and at City Council meetings invited residents to send requests for repairs to Mullane.

The Customer Service Request Log items 15156 and 15162 (page 7 of Attachment D) are relevant to this investigation and both show as "open." Item 15156 refers to the Knapp residence. Item 15162 refers to a November 19, 2015, request relating to "drainage path running into Acacia," and the contact is shown as Victoria Beach.

Mullane recalls that Beach sent Culver an email which Culver forwarded to him. He also recalls that Culver told him that Beach had approached Jesse Garibay about a drainage issue on her street. Initially in the interview, Mullane denied knowing that Acacia Way was a private road and denied that Culver had told him this was a private road. Mullane later modified his statement to say that Culver may have told him that this was a private road, but he thought that the remedial work would be done on the public right of way. Mullane says he never understood that the City crew would be performing work on Acacia or near Beach's home.

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From Mullane's perspective, Culver brought Beach's request to him not because it involved her private property but because the request was coming from a council member who may have been pressuring staff to get the work done as a top priority.

Mullane felt his guidance was needed to make sure that a council member did not exert undue pressure or receive special treatment. Mullane says that this is the reason that he notified Mike Calhoun about the work being put on the repair list. Mullane believes that he discussed Beach's request with Calhoun at one of their regular weekly meetings before sending Calhoun an email which included the correspondence between Beach and Culver. (Attachment F) Mullane's email reflects his belief that his staff contacted him because they felt pressure from Beach to expedite the construction of the berm.

Mullane says he was on vacation on December 17, when Yvette Oblander texted him that a neighbor had complained about work on Acacia. Mullane says he spoke to Culver who told him that the work had not yet been "rolled" or compacted. Mullane recalls that he told Culver to remove the berm since the work was not yet complete, and told Culver that they would talk about the matter on Monday, December 21. Mullane called Buikema to notify her that the berm should not have been constructed and would be removed that day. He recalls that he told Buikema that it was news to him that the

work was being done on private property.

Mullane says that Buikema also reported that the City crew had graded Beach's driveway. Mullane says that Garibay confirmed that the crew did not work on the

driveway.

Mullane has not had any conversation with Victoria Beach about the complaint. Culver reported to him that Beach had called Culver to find out what was happening with the

"beautiful berm."

Mullane is not aware that the City crews annually inspect and clean out storm drains on private lands. He said that the City should not be doing that unless there is a maintenance agreement between the City and the property owner.

Mullane says that he meets with Culver every Monday and on Monday, December 21, he asked Garibay to sit in on the meeting. Mullane was concerned that neither employee had challenged his direction to do work on Acacia. In this meeting Mullane told Garibay and Culver that they need to "push back" if they believe he is directing

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them to do something that is improper. 3 He also decided that in the future when issues like this are brought to him, he will make a site visit so that he has a clear picture of what work is being proposed.

Mullane says that this incident was a mistake and he is "embarrassed" by it, but there was nothing "willful or untoward" involved. Mullane confirms that Calhoun counseled him about good customer service when a citizen calls with a complaint and Mullane is out of his office.

Victoria Beach

Beach currently serves on the Carmel City Council. She has lived on Acacia Way for the past seven years. Beach confirmed that the road is private and has a sign at its entrance that reads "private drive." She describes herself as being "the newest on the street."

At the outset, Beach wanted it understood that no City work was done on her property, noting that the berm was constructed on Acacia Way, the paved road, which she co­owns with the other Acacia property owners. She wishes to make clear that she never asked City crews to work on or at her private property.4

She recalled an announcement at a City Council meeting asking for property owners to notify the City, specifically Rob Mullane, about potential flood issues. One of her neighbors, Nancy Knapp, emailed her about issues near her home on the corner of Flanders and Vizcaino, and Beach forwarded that email to Rob Mullane.

Beach did not initially recall asking to be notified when the City staff member met with Ms. Knapp, nor did she recall talking to Rob Culver at the Knapp property on November 17. When shown her email of November 16, Beach's recollection was refreshed. She says that she showed Culver how the water flows down Acacia from the public street (Flanders) onto private properties. She told Culver she was not sure if the City could assist a private road (Acacia), and she asked him to review this situation with his superiors. Although she thought that the City had no responsibility on a private road, in this case the problems were caused by rain water coming from Flanders, a public right of way.

3 It should be noted that the Investigator asked each employee if he knew what to do if he were ever directed by a superior to do work that he believed was improper or illegal. None mentioned the option of contacting the City Attorney. 4 Beach says that she was contacted by a reporter who heard that City crews had done work on her property.

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She recalls having Jesse Garibay also visit her property while he and his crew were working near the Knapp property. She says that she showed him three elements involving storm water: the clogged drain, the outfall, and the water that was flowing off the road onto private property. She says that the storm water was not following the correct direction to the outfall or if it made it there, the drain was clogged.

She says that Garibay told her there were three tasks needed: clear out the drain of any debris; clear the trench or overflow; and install a berm to keep water on the street. Beach says that the berm being discussed would be placed adjacent to her property near an area covered by mulch to redirect the storm water away from her property. Beach disputes that this mulch area is her driveway though she concedes that vehicles could be parked there. She says that her driveway is on the other side of her property. Beach says that water running down Acacia was hitting the berm across the street from her property and being redirected towards the mulch area on her property.

She says she told Garibay to let her know if the City could not do the work on Acacia because she would then know that the Acacia homeowners would have to take care of the work privately.

Beach says she never spoke to Mullane about this issue except briefly at a City Council meeting when he told her that the work was "good to go" which she believed meant that the issue about whether the City could do work on private property had been resolved. She assumed that Mullane had looked into the private property issue because he normally would not have been reviewing routine Citywide requests for berms and other storm water preparations.

Beach was home on the morning of December 17 when Garibay and his crew began to construct the berm. She confirms that the asphalt berm was constructed on the paved road next to her property and that this berm would have directed water away from her property. She says that the crew did not clear out the Acacia drain to the best of her

knowledge.

She says that the City crew left the property that morning and then another truck arrived later in the day to remove the berm. She asked Garibay what was happening, and he told her that the City had received a complaint from a neighbor. Beach does not recall if she asked Garibay for the name of the complainant.

Beach then called Rob Culver to ask what happened. She does not recall using the words "beautiful berm." She asked him why the staff did not stand behind its position that the berm was appropriate and that is when she first learned that Mullane had not

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realized that this berm would be constructed on Acacia. She says Culver told her that the complainant has a history of being "disgruntled" with the City, and based on that description, Beach recognized who the complaining neighbor was. She says that she vaguely recalls neighbors on Acacia telling her that they had been water issues in the past and that the City had not assisted them.

Beach left on vacation early the following morning ( December 18) and was gone for almost a month. Beach questions the City's response to the complaint. She feels that removing the berm was a waste of money. She feels that because the decision had been approved by a supervisor, the City should not have been so quick to reverse itself. Beach also wonders why a berm could not have been constructed on Flanders to divert water from Acacia.

Michael Calhoun

Calhoun is the City's Police Chief and since November 2015 is the City's Interim City Administrator.

Calhoun recalls Mullane announcing at a Council meeting that citizens should contact him directly as the point of contact for all storm water issues this year.

Calhoun had no information about the construction of the berm on Acacia Way until December 17, 2015, when he received a phone call from Mullane and an email from Mayor Burnett forwarding Buikema's complaint. Calhoun did not know that Beach requested City work near her property, and he had not discussed this work with Beach or Mullane prior to December 17.

On December 17, Calhoun was in San Francisco. He spoke by phone to Mullane who explained that the City crew had constructed a berm on Acacia which is a private road. At that time Mullane told Calhoun that he hadn't realized that he had approved work on private property.

When first asked if Mullane had given him advance notice about this work, Calhoun had no memory of any discussion or notice from Mullane. In a second interview, when Calhoun was shown email sent to him by Mullane on November 19 (Attachment F), Calhoun noted that Mullane's correspondence did not include any description of the work that Beach had requested nor any details about the scope of the work that Mullane had approved.

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Calhoun responded to Mullane on November 19 (Attachment G) with a statement that he had spoken to council"regarding the workload and communicating the needs of the city," in a reference to Mullane's message that his staff had felt pressured to expedite Beach's request.

Calhoun said that he did not know that Mullane had told Culver that he had notified Calhoun about the approval or that Culver and Garibay both believed that approval for the work had been authorized by Calhoun as well as Mullane.

Calhoun advised Mullane about the correct method for the department to handle a citizen complaint in Mullane's absence to avoid a citizen feeling the need to contact the Mayor or the City Administrator.

FINDINGS

1. Acacia Way is a private road that has never received City Public Works services or street maintenance in at least twenty years prior to December 17, 2015.

2. On November 17, 2015, Victoria Beach asked Rob Culver to inspect her property on Acacia to show him erosion damage near her property caused by storm water runoff from Flanders and to seek City assistance with this matter.

3. On November 18, 2015, Victoria Beach asked Jesse Garibay to inspect her property on Acacia to identify ways to solve the problem of storm waters from Flanders eroding her property. At that time Garibay told Beach that a berm near her property would solve the problem.

4. In an email dated November 18, 2015, Victoria Beach asked Rob Culver to consider asphalt berms to reduce debris problems in winter storms on Acacia from storm waters coming from Flanders and to "factor it into department decisions about the repair list."

5. Victoria Beach was aware that Acacia Way is a private road which does not normally receive city services. She believed that because the storm runoff on Acacia originated from Flanders, a city right of way, that it was appropriate to ask the City for assistance.

6. Rob Culver asked his supervisor Rob Mullane how to respond to Beach's request because he wanted to provide good customer service, he didn't know how to respond to the councilmember's request, and the runoff from the public right of way (Flanders) was causing the erosion at the Beach property.

7. Although Rob Mullane did not do a site visit, he had been told that Acacia Way was a private road.

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8. Rob Mullane believed that Culver was seeking his direction regarding Beach's request because of the sensitive nature of a councilmember requesting city services and because Culver or Garibay, or both, felt pressured to expedite Beach's request.

9. Rob Mullane was not aware that the berm requested by Beach would be constructed on private property (Acacia Way) or adjacent to Beach's home. Rather, Mullane assumed that the work would be performed on city right of way to remedy the issue of water draining onto Acacia Way and that was the basis for his approval.

10. On November 19, 2015, Mullane authorized Culver to place Beach's request for a berm on the customer service list, which Culver did.

11. On November 19, 2015, Culver received an email from Mullane notifying him that Calhoun was aware of the work request and Mullane's approval. Culver shared that information with Garibay. Culver and Garibay believed that Mullane and Calhoun approved the work.

12. On November 19, 2015, Mullane forwarded to Chief Calhoun the November 18, 2015, email from Victoria Beach asking that Culver consider her request for a berm to solve the water runoff problems on Acacia. Mullane's message to Calhoun reflects Mullane's understanding that Public Works staff felt "pressuren from Beach to expedite her request. Mullane also forwarded Culver's email to Beach informing her that her request would be placed on the department's work list.

13. Chief Calhoun was never informed that the request from Victoria Beach involved City crews building a berm on Acacia Way or near her property. Calhoun believed he was being notified about Beach's request because Public Works staff felt that Beach wanted this work to receive priority in scheduling.

14. Culver assigned Jesse Garibay to construct the berm adjacent to the Beach residence based on Mullane's approval.

15.0n the morning of December 17, 2015, Jesse Garibay and his crew constructed an asphalt, cold mix berm on Acacia Way adjacent to Victoria Beach's home. That afternoon this berm was removed by the City crew in response to the complaint from Barbara Buikema.

16.1t is more likely than not that the authorization for the berm on Acacia Way adjacent to the Beach residence was the result of lack of information, incorrect assumptions, and poor communication between Rob Culver and

Rob Mullane.

Dated: ~ .:J5, ii!2f.'-

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