The San Bernardino City Attorney Forum: A First Person Report
September 28, 2011 Leave a comment
By Michael Reiter, Attorney at Law
Yesterday involved three City Halls for me: I attended a meeting at Hesperia City Hall in the morning, a City of Highland City Council Meeting starting at 6 P.M., and I attended 95 percent of the San Bernardino City Attorney debate last night, and all of the City Clerk’s debate at San Bernardino City Hall.
I sat near Josh Dulaney during the City Attorney’s forum. He was tweeting the debate, with an Acer netbook or small laptop on his lap with a Verizon Wireless dongle, and he had a traditional pad for notes next to him. The majority of his time was spent Twittering which you can see on the Sun’s website (at the time of this post) or on his Twitter feed. His article in the paper today reads like his tweets. He left before the City Clerk forum, which was unfortunate. The PE’s reporter stayed through both and had a paragraph regarding the substance of the Clerk’s forum.
I arrived late to the City Attorney’s forum because my City of Highland agenda item did not end until about 6:50, and it takes time to get from east Base Line in Highland to North D in downtown San Bernardino. The council chambers were maybe half full during the City Attorney’s forum. However, it looked more crowded because people like to sit on the ends of rows instead of the middle, so there was a large standing room crowd.
The forums will be replayed on Channel 3, and will be posted online at http://www.iemediagroup.org/. However, to get the full impact, voters should attend in person next time.
From a political perspective, City Attorney Penman was in peak form. His use of visual aids was good, though I seem to remember that the visual aids he used against Marianne Milligan were larger. All the candidates were given the questions ahead of time, and the remarks were largely prepared. I think it was necessary for the candidates to read their responses because of the time limitations. The problem with the forums is that they are not debates, and are not a good format for candidates to differentiate themselves from one another if the format is followed.
Luckily, neither challenger David L. McKenna, nor City Attorney Jim Penman stick to the format. There is always a highly charged atmosphere in these forums, and this one was no dr. Former mayoral candidate, and son of the previous City Attorney, attorney Tim Prince was present, and he heckled City Attorney Penman as usual.
Previously, I made this observation:
Expect City Attorney James F. Penman to emphasize his record, the recent attempts to cut the City Attorney budget, the history of corruption in the City and the City Attorney’s record against corruption, and attempts to portray the challenger, David L McKenna as a carpetbagger, and allegations regarding the challenger’s actions as Public Defender and County Supervisor. Expect challenger David McKenna to attack the longevity of City Attorney Penman’s career as City Attorney (the change mantra), the history of the City Attorney’s relationships with others in the City, and no doubt the same allegations that were brought up in the last City Attorney’s race. Expect the budget to be an issue for the challenger, as well.
How did I do? City Attorney Penman did the things that I expected in the debate, and then piled on from there. City Attorney Penman brought up David McKenna’s past controversies when McKennna was Public Defender and County Supervisor. Penman lambasted McKenna for wanting to try cases if McKenna was City Attorney, and attacked McKenna for being out-of-touch when McKenna criticized the City Attorney’s Office for unsuccessfully trying a panhandling case. There was the innuendo about David McKenna’s inactive status with the State Bar (if we had an effective local press, this issue would have already come up) and the picture of the Mayor’s car in front of David McKenna’s rented house. That touches upon the carpetbagger theme, and is an attempt to tie the candidate McKenna with incumbent — and embattled — Mayor Pat Morris. Penman emphasized his long-standing mantra of City Attorney as “independent watchdog.” I think that has been a winning argument in three contested elections (so far).
Challenger David McKenna attacked the longevity of City Attorney Penman’s career, the City Attorney’s history in the political sandbox with others, but he did not trot out the old legal accusations against the City Attorney nor the FPPC violation related to Arrowhead Country Club. I am not sure if that is a strategy or an omission. David McKenna did bring up issues involving the City Attorney’s criminal caseload, and it seems clear to me from his comments that his campaign has looked at court records to uncover examples of the perceived misuse of department resources. If he has any chance at all, he needs to nail down specifics of how he is going to streamline the office (beyond getting rid of the investigators).
The biggest laugh of the night came at the expense of David McKenna, when he referred to the Press-Enterprise as “respected” when quoting an editorial. He came off as impotent. I am not sure anyone can win the City Attorney’s Office against Jim Penman playing by the Marquess of Quensberry Rules. The City Attorney is a street-fighter, and his skills in chess (thinking more than one move ahead) cannot be underestimated. I think a lot of the City Attorney’s opponents think that they are smarter and better than Jim Penman, and I think that is their downfall. The take-away is that you want to beat him in the arena that he has built for combat, you must play by Hama Rules. David McKenna failed to anticipate the lines of Penman’s attacks, failed to have answers for those attacks, and just repeated the same things we had heard for years, that the City Attorney was a “bomb-thrower.” McKenna echoed Marianne Milligan’s futile citation of the League of California Cities voluntary ethics code for City Attorneys. It is a nice document that does not reflect the realities of elected City Attorneys (because there are so few elected city attorneys). How do you make a position that must run for election not political? By definition, an elected position is political. Further, how did the ethics code section cited prevent the City of Bell scandal?
I think David McKenna had the wrong response to the “inactive status” accusation. He attacked the messenger, calling him insane and unethical and slanderous, and running around after the debate saying he was going to report the City Attorney to the Bar Association. This is a weak position for a few reasons. One, it smacks of taking one’s ball and running home. The second, is because I can think of no California Rule of Professional Conduct that could have possibly been violated here. Obviously, this is not slander in a legal sense of the word. We have pure political speech here in a public forum. He should have given a reason he was on inactive status (or, in the case that the bomb being thrown was true, spun a good answer).
The winner: City Attorney Jim Penman by a TKO. Some might question the wisdom of the late-round bomb throwing by the incumbent, but it is a recognized part of his political theater (see: unnamed attorneys drafting the charter, mystery candidate for mayor, and unnamed council members being investigated for corruption) and should have been better anticipated by David McKenna.
The only people that can do the “pure as the driven snow,” “above politics” schtick are judges. If the Morris camp were serious, which they have shown with the last two challenges that they are not, they would have run a sitting judge against the City Attorney. You have the example of Judge Jan Goldsmith becoming City Attorney in San Diego against the City Attorney that makes City Attorney Jim Penman look like a rank amateur as far as divisiveness (and actual power of the office), you have Judge Paul Zellerbach beating Rod Pacheco for Riverside County DA (who made former San Bernardino County District Attorney Dennis Stout look reasonable, and you have the more local example of Judge Patrick J. Morris beating City Attorney James Penman for Mayor. Twice.
I think this is an example of the Morris camp playing checkers when City Attorney Jim Penman plays an excellent game of chess. They continue to underestimate City Attorney Penman, and at this point, he will exit the office at the time of his choosing. Short of major scandal or October surprise, which I doubt exist, I am calling this race for City Attorney Jim Penman.
I’ll review the City Clerk’s forum in the next post.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.
About Michael Reiter, Attorney at Law
