The Recall Process Under the Charter of the City of San Bernardino

By Michael Reiter, Attorney at Law

The current Charter of the City of San Bernardino, Article VII is entitled “Initiative, Referendum and Recall.”  Section 122 of the Charter reads (with annotations):

Section 122. The Recall. Proceedings may be commenced for recall of the

holder of any elective office of this City and the election of a successor of the

holder sought to be removed by the service, filing and publication of a notice of

intention to circulate a recall petition. Such proceedings may not be commenced

against the holder of an office unless, at the time of commencement, the holder

has held office for at least ninety days and no recall petition has been filed against

such holder within the preceding six months. A petition demanding the recall of the

officer sought to be recalled shall be submitted to the City Clerk. The petition shall

be signed by not less than fifteen percent (15%) of the voters of the City, or in the

case of a City Council Member elected by ward twenty-five percent (25%) of the

voters of that ward, according to the County Clerk’s last official report of

registration to the Secretary of State. No signature may be affixed to the petition

until the proponents have served, filed and published a notice of intention to

circulate a recall petition, containing the name of the officer sought to be recalled

and the title of his/her office, a statement in not more than 500 words of the

grounds on which the recall is sought, and the name and address of at least one,

but not more than five proponents. The notice of intention shall be served,

personally or by certified mail, on the officer sought to be recalled, and a copy

thereof with a certificate of the time and manner of service shall be filed with the

clerk of the legislative body. Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed. The petition

shall bear a copy of the notice of intention, statement and answer, if any. If the

officer has not answered, the petition shall so state. Signatures shall be secured

and the petition filed within ninety (90) days from the filing of the notice of intention.

If such petition is not filed within the time permitted by this section, the same shall

be void for all purposes. The signatures to the petition need not all be appended to

one paper; but each signer shall add to his/her signature his/her place of

residence, giving the street and such other identification as may be required by the

registration law. One of the signers of each such paper shall make oath before an

officer qualified to administer oaths, that the statements therein made are true, and

that each signature to the paper appended, is the genuine signature of the person

whose name purports to be thereunto subscribed. Within thirty (30) days after the

date of filing such petition the City Clerk shall examine and ascertain whether or

not said petition is signed by the requisite number of qualified electors and, if

necessary, the Council shall allow extra help for that purpose, and the City Clerk

shall attach to said petition a certificate showing the result of said examination. If,

by the City Clerk’s certificate, the number of signatures on the petition is shown to

be insufficient, it shall be returned forthwith by the Clerk to the filer(s) thereof who

shall have an additional thirty (30) days from the date the petition is returned to

them by the Clerk to obtain the required number of signatures. The City Clerk shall,

within thirty (30) days after such additional thirty (30) day period to obtain

additional signatures, make like examination of said petition, and, if his/her

certificate shall show the same to be insufficient it shall be void for all purposes. If

the petition shall be found to be sufficient, the City Clerk shall submit the same to

the Council without delay and the Council shall thereupon order and fix a date for

holding said election, not less than fifty (50) days, nor more than seventy (70) days

from the date of the City Clerk’s certificate to the Council that a sufficient petition is

filed.

The ballots used when voting upon said proposed recall shall contain the

words “shall (title of office and the name of the person against whom the recall is

filed) be recalled?” and the words “yes” and “no.”

The Council and the City Clerk shall make, or cause to be made, publication

of notice and all arrangements for conducting, returning and declaring the results

of such election in the same manner as other City elections.

Qualified candidates to succeed the person against whom the recall is filed,

shall be listed on the ballot, except that the incumbent shall not be eligible to

succeed himself/herself in any such recall election.

In any such removal election, if a majority of the votes cast is for “yes” on

the question of whether or not the incumbent should be recalled, the candidate

receiving the highest number of votes shall be declared elected. The incumbent

shall thereupon be deemed removed from the office upon qualification of his/her

successor. In case the party who received the highest number of votes should fail

to qualify within ten (10) days after receiving notification of election, the office shall

be deemed vacant. The successor of any officer so removed shall hold office

during the unexpired term of his/her predecessor. (Effective March 16, 2005)

Any elected official in the City of San Bernardino can be recalled using this procedure.  The limitations are stated above in which the office holder must be in office at least 90 days, and no recall petition has been filed against the office holder in the preceding six months.  The elected officials of the City of San Bernardino are the Mayor, the seven members of the Common Council, the City Clerk, the City Treasurer, and the City Attorney.

The Municipal Code further gives the procedure for recall elections as follows:

2.56.160 Recall elections.

A recall election to remove an elected officer pursuant to Charter Section

122 shall be ordered, held and conducted and the result thereof made known and

declared in the same manner provided in this chapter for municipal primary and

general elections except as follows:

A. Time for Obtaining Signatures. Nomination papers shall be issued and

verification deputies appointed to obtain signatures to nomination papers of

any candidate at any time not earlier than the thirty-fifth day nor later than

five p.m. on the twenty-ninth day before the recall election.

B. Date filed with City Clerk. All nomination papers shall be filed with the City

Clerk not later than five p.m. on the twenty-ninth day before the recall

election.

C. Not earlier than the thirty-fifth day, nor later than the tenth day before a recall

election, the City Clerk shall publish a notice of the election at least once in

one or more newspapers published and circulated in the City. The notice

shall be headed “Notice of Election,” and shall contain a statement of:

1. The time of the election;

2. The offices to be filled, specifying full term or short term, as the case

may be;

3. The hours the polls will be open.

D. Absentee Ballots. Not earlier than the twenty-sixth day, nor later than the

seventh day before a recall election, any voter entitled to vote by absent

voter ballot as provided in Elections Code Section 14620 [See now §3003],

may file with the City Clerk either in person or by mail, his written application

for an absent voter’s ballot. The application shall be signed by the applicant,

shall show his place of residence, and shall make clear to the City Clerk the

applicant’s right to a ballot.

Applications received by the City Clerk hereunder on or after the

fortieth day but prior to the twenty-sixth day before election shall not be

returned to the sender, but shall be held by the City Clerk and processed by

him following the twenty-sixth day prior to election in the same manner as

if received at that time.

(Ord. 3601 (part), 1976; Ord. 2048 §10, 1954.

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.

Copyright 2013 Michael Reiter, Attorney at Law

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761