Pete Aguilar For Congress (California Congressional District 31) Mailer Number One

By Michael Reiter, Attorney at Law

This post has a both a legal and a political bent, so let me start with the legal side.  I have written in the past about blind operators (specifically, in this post dated July 11, 2011):

I was a file clerk/runner for Milligan and Beswick in San Bernardino over twenty years ago.  Part of my job was to file pleadings with the court.  I became fairly intimate with the building at 351 North Arrowhead Avenue.  In the early 1990s, there were no metal detectors at the court.  You could easily run into the court and then back out.

I would sometimes get lunch for people in the office from the courthouse cafeteria.   It was run by a blind operator.   I would also sometimes buy snacks from the other blind operator (his sight was only somewhat impaired).  I remember buying popcorn, peanut M&Ms and six ounce Pepsi Colas in bottles (which by the early 1990s were not easy to come by) from the operator located next to the main stairway in the old courthouse.  I recall that he also sold hot dogs of the sort you could find in a movie theater.

Flash forward to 2012.  I first heard the story you will find bellow a few months ago, but here it is featured in the first Pete Aguilar for Congress mailer (that I have seen, anyway).

On the front is a picture of Redlands Mayor Pete Aguilar standing with his hands in his pockets in front of the San Bernardino County Courthouse at 351 North Arrowhead Avenue in San Bernardino.  The caption says “Pete Aguilar Learned Valuable Lessons in This Building” the bottom says “Learn more about Pete at www.peteaguilar.com“

View this document on Scribd

On the second page of the four page flier it says: “PETE AGUILAR. Mayor. Democrat.  Business Owner.”

View this document on Scribd

The second and third page has a picture of Pete Aguilar talking to three people in what appears to be a cafeteria.  The third page has the following pull quotes from Mayor Pete Aguilar:

“My FIRST JOB, as a teenager, was bussing tables and washing dishes at the San Bernardino County Courthouse Cafeteria.

“My grandfather, who was legally blind, managed the facility and manned the cash register.  He taught me the values of hard work, playing by the rules and helping others.

“Washington has lost those values.  Today, our politicians would rather pick fights than solve problems.

“I’m running for Congress to help small businesses, create jobs and protect Medicare for our seniors.  That’s the change that middle-class families need in Washington.”

- Pete Aguilar

View this document on Scribd

I first met Pete Aguilar after he was appointed to the Redlands City Council after the departure of  Susan Peppler, when he went to meet staff.  I was at the Council Meeting at which he was appointed, and I believe I sat either behind him and his wife Alisha and his very young (at the time) son Palmer, or in front of them.  That particular meeting was one of the most interesting I had ever attended, but that’s a post for a different time.  However, it appears we may have had a brush with each other decades earlier in the basement of the San Bernardino County Courthouse.

The final page is a picture of Pete Aguilar and his family, Palmer, Evan and Alisha.  The text says “Pete Aguilar, Leadership on Your Side” and “Pete Aguilar is a small business owner, Mayor of Redlands and a fourth generation resident of the Inland Empire.  He and his wife Alisha live in Redlands with their sons Evan and Palmer.”

View this document on Scribd

Copyright 2012 Michael Reiter, Attorney at Law (no claims to the flier, which was produced by and are owned by Pete Aguilar for U.S. Congress, and used pursuant to 17 United States Code section 107).

Friday Aside: Locally Grown Blueberries in Redlands

By Michael Reiter, Attorney at Law.

I have written about local agriculture before ( Locally Grown Strawberries in Redlands, Growing and Selling Crops and Agricultural Products in the Inland Empire , Front Yard Fruit Stands in Redlands).

Last night, at Redlands’ Thursday Market Night, I had the locally produced blueberries from Soffel Farms in Redlands.  I first heard about the blueberries in a Redlands Daily Facts article last year because they had you-pick blueberries.  I asked the woman at the stand if they were going to do that again this year, and she said they were in a few weeks.

In addition to blueberries, they have raw honey, avocados, and oranges.  They have a stand at 1545 East San Bernardino Avenue, Redlands, CA 92374 at the corner of Dearborn and San Bernardino Avenue, near the Redlands Sports Complex also known as the AYSO fields.  I haven’t been there yet, but it appears on Google Street View that the entrance is on Dearborn.
According to the flier they are open 7 days a wek, Monday through Friday 12 to 6 p.m and Saturday and Sunday from 9 to 5 p.m.

 

Copyright 2012 Michael Reiter, Attorney at Law

HIPPA Creates No Private Right of Action for Violation of the Privacy Rule

By Michael Reiter, Attorney at Law

When I was Assistant City Attorney for the City of Redlands, I had the unenviable task of making sense of the HIPAA Privacy Rule, which is found at 45 CFR Part 160 and Subparts A and E of Part 164. One thing that should be mentioned is this:

HIPAA itself does not provide for a private right of action, see 65 Fed.Reg. 82601 (Dec. 28, 2000)(“Under HIPAA, individuals do not have a right to court action.”)   Webb v. Smart Document Solutions, LLC (9th Cir. 2007) 499 F.3d. 1078, 1082.

There may be some relief in state unfair competition law, but not in federal law, and not as the basis for a 42 U.S.C. section 1983 case.  Therefore, it may be difficult to find an attorney, outside of a class action, to take a case if someone violates the HIPAA privacy rule.

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 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Do I Need A Building Permit?

By Michael Reiter, Attorney at Law

The answer usually is yes, you do need a building permit.  California, and in turn, local public entities, have adopted the California Building Code, which is a version of the International Building Code, formerly, and sometimes still called, the Uniform Building Code.  By now, most cities and towns in California should be using the 2010 Code, though the 2012 Code is being developed.  However, be cautioned that some municipalities are relying on older versions of the California Building Code, and the procedures were incorporated in the Uniform Administrative Code.  Check with your jurisdiction!
The California Building Code is difficult to find online, but it is codified in Title 24 of the California Code of Regulations.  The situation is much better than it used to be, when the copyright to the underlying model code prevented it from being offered inexpensively or free online.

Title 24, Part 2, Section 105 et seq. has the general requirement regarding permits.  It reads:

SECTION 105 PERMITS

105.1 Required. Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.

There are certain exemptions to this requirement:

105.2 Work exempt from permit. Exemptions from permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction. Permits shall not be required for the following:

Building:

1. One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area does not exceed 120 square feet (11 m2).

2. Fences not over 6 feet (1829 mm) high.

3. Oil derricks.

4. Retaining walls that are not over 4 feet (1219 mm) in height measured from the bottom of the footing to the top of the wall, unless supporting a surcharge or impounding Class I, II or IIIA liquids.

5. Water tanks supported directly on grade if the capacity does not exceed 5,000 gallons (18 925 L) and the ratio of height to diameter or width does not exceed 2:1.

6. Sidewalks and driveways not more than 30 inches (762 mm) above adjacent grade, and not over any basement or story below and are not part of an accessible route.

7. Painting, papering, tiling, carpeting, cabinets, counter tops and similar finish work.

8. Temporary motion picture, television and theater stage sets and scenery.

9. Prefabricated swimming pools accessory to a Group R-3 occupancy that are less than 24 inches (610 mm) deep, do not exceed 5,000 gallons (18 925 L) and are installed entirely above ground.

10. Shade cloth structures constructed for nursery or agricultural purposes, not including service systems.

11. Swings and other playground equipment accessory to detached one- and two-family dwellings.

12. Window awnings supported by an exterior wall that do not project more than 54 inches (1372 mm) from the exterior wall and do not require additional support of Groups R-3 and U occupancies.

13. Nonfixed and movable fixtures, cases, racks, counters and partitions not over 5 feet 9 inches (1753 mm) in height.

Electrical:

Repairs and maintenance: Minor repair work, including the replacement of lamps or the connection of approved portable electrical equipment to approved permanently installed receptacles.

Radio and television transmitting stations: The provisions of this code shall not apply to electrical equipment used for radio and television transmissions, but do apply to equipment and wiring for a power supply and the installations of towers and antennas.

Temporary testing systems: A permit shall not be required for the installation of any temporary system required for the testing or servicing of electrical equipment or apparatus.

Gas:

1. Portable heating appliance.

2. Replacement of any minor part that does not alter approval of equipment or make such equipment unsafe.

Mechanical:

1. Portable heating appliance.

2. Portable ventilation equipment.

3. Portable cooling unit.

4. Steam, hot or chilled water piping within any heating or cooling equipment regulated by this code.

5. Replacement of any part that does not alter its approval or make it unsafe.

6. Portable evaporative cooler.

7. Self-contained refrigeration system containing 10 pounds (5 kg) or less of refrigerant and actuated by motors of 1 horsepower (746 W) or less.

Plumbing:

1. The stopping of leaks in drains, water, soil, waste or vent pipe, provided, however, that if any concealed trap, drain pipe, water, soil, waste or vent pipe becomes defective and it becomes necessary to remove and replace the same with the new material, such work shall be considered as new work and a permit shall be obtained and inspection made as provided in this code.

2. The clearing of stoppages or the repairing of leaks in pipes, valves or fixtures and the removal and reinstallation of water closets, provided such repairs do not involve or require the replacement or rearrangement of valves, pipes or fixtures.

However, the inquiry does not end here.  California Health and Safety Code section 17958.7  permits local changes to the California Building Code:

(a) Except as provided in Section 17922.6, the governing body of a city or county, before making any modifications or changes pursuant to Section 17958.5, shall make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions. Such a finding shall be available as a public record. A copy of those findings, together with the modification or change expressly marked and identified to which each finding refers, shall be filed with the California Building Standards Commission. No modification or change shall become effective or operative for any purpose until the finding and the modification or change have been filed with the California Building Standards Commission.

So, the answer to “Do I Need a Building Permit” requires you to look at the changes to the California Building Code in your local municipal code.  For example, one local City used to have a requirement that you needed a permit to pour a concrete patio slab, where it was otherwise exempt from the Uniform Building Code.  The City of Moreno Valley has modified the Code adding an exemption:

Moreno Valley Municipal Code section 8.20.010 reads in pertinent part:

    The California Building Code, 2010 Edition, based on the 2009 International Building Code as published by the International Code Council, excluding Chapter 29 and Chapter 34 and including Appendix H and the standards referred to therein, is adopted and made part of this title by reference with the following modifications:

. . .

E.   Chapter 1, Division II, Section 105.2, Building 2 is hereby amended to read as follows:

Fences not over six (6) feet high, masonry concrete block walls under four (4) feet, or combination masonry concrete block walls with wrought iron under four (4) feet high.

Note that the City Council or other approving body must make findings that the ” changes are reasonably necessary because of local climatic, geological or topographical conditions.”   However, the findings just have to be made and filed, they don’t actually need any basis in reality, apparently.  The City of San Jose, for example, removed the administrative appeal process in the California Building Code for revocation of permits.

So, the short answer is that many things that people do not obtain permits for, such as installing a new dishwasher, require permits, though there are some things such as tile work or painting that don’t require permits, unless they are prohibited by local agencies.

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 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Locally Grown Strawberries in Redlands

By Michael Reiter, Attorney at Law.

I have written about local agriculture before (Growing and Selling Crops and Agricultural Products in the Inland Empire , Front Yard Fruit Stands in Redlands).  I have fond memories of strawberries from a farm in Highland, which no longer exists, Hamamura Farms.  Hamamura’s was at 28214 E. Third Street in Highland in the mid-1960s, and I remember visiting last in 1990, though its exact location escapes me.  The Highland Area Historical Society says that in 1952:

Ruth and Ronald Hamamura, and children Dennis, Roger, and Roy, arrived
from Honolulu, Hawaii, and purchased their East Third Street property.
They built a large glass green house for an exotic plant nursery. A
disastrous freeze that winter killed most of their unprotected stock.
Ronald went to work for Sears for fifteen years. The Hamamura’s had 10
acres, but no water, so they leased 15 acres from the Rozemas, their
neighbors to the west. In 1960, the Hamamuras sank a well on their own
ten acres and have since become outstanding strawberry producers in the
area. Also grown are Maui style onions and vegetables.

Roy Hamamura returned to Hawaii and grew strawberries in Maui. Hamamura’s ceased to exist in the 1990s, but local strawberries are still available in Mentone and Redlands.

You can still get locally grown strawberries in Redlands.  One such place is Jacinto Farms, which grows strawberries in Mentone and sells them at their two stores: the original at 2108 Mentone Boulevard, Mentone, CA and the (somewhat (January 27, 2012)) new location in Redlands, 1269 Brookside Avenue, in Redlands.

The Redlands location is a good example of adaptive reuse: it is a former gas station on Brookside, not too far from a Mobil station, and just down the road from the Stater Bros. on Alabama Street.  When I was Assistant City Attorney, residents on Magnolia were rightly complaining about the former gas station being vandalized, so it is good that it went from neighborhood eyesore to a place to buy local produce.

Jacinto Farms produces the citrus that Redlands and Mentone is famous for, but also has other seasonal fruits and vegetables.  Expect to pay Market Night prices, and they are conventionally grown, but the fruit is fresh and produced less than four miles away, according to the Jacinto Farms website.

I’ve eaten the strawberries from the Redlands “stand” three times, most recently about fifteen minutes ago.  They are much better than the imported (either from Oxnard or Mexico) strawberries that Stater Bros. had as a loss-leader recently. If you pass by on Brookside, take a look.  Right now, in addition to oranges, strawberries and avocados, they have lettuce, small artichokes, and onions, among other produce.  Though they are open until 6:30 p.m., the selection of non-oranges and avocados is much better at around noon.

Copyright 2012 Michael Reiter, Attorney at Law

 

What Municipal (Local City and Town) Offices are Up for Election in San Bernardino County in November 6, 2012?

By Michael Reiter, Attorney at Law

In short, it is an election year for everyone except the City of San Bernardino.  Many local cities consolidate their election to either the Presidential election and the Congressional Midterm Elections, because it costs less.

Starting with the High Desert, the City of Adelanto is electing two Council Members; Apple Valley, two Town Council Members; Barstow is electing the Mayor, the City Clerk, City Treasurer, and two City Council Members, Hesperia, two Council Members, Needles is electing two Council Members and the Mayor, Twentynine Palms is electing two Council Members. Rounding out the High Desert is Victorville, electing three Council Members, and Yucca Valley electing two Town Council Members.
In the San Bernardino Mountains, the City of Big Bear Lake is electing two City Council Members

In the Southwest of San Bernardino County, Chino is electing two City Council Members, and Chino Hills, the same number.

In the East-end of San Bernardino, the City of Colton is electing City Council Members in two districts, 3 and 5; the City Clerk and City Treasurer, and the Blue Mountain City, Grand Terrace, is electing three Council Members.  Fontana, which either is the western part of the East Valley, or the Western part of the West-end, is electing two City Council members.  Highland is electing two Council Members, the adjoining City of Redlands has two Council Member seats up for election, and City Clerk and City Treasurer.  Rialto has a mayoral election, City Clerk, City Treasurer, and two Council Member seats.  Lastly, Yucaipa is electing three Council Members.

In the West-end, Montclair is electing two Council Members; Ontario is electing Mayor, City Clerk, City Treasurer, and two Council Members; Rancho Cucamonga, land of Victoria Gardens, is electing its City Clerk, City Treasurer, and two Council Members; Upland, is electing one Council Member, the Mayor and Treasurer.

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 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

City Attorneys of San Bernardino County Cities and Towns

By Michael Reiter, Attorney at Law

People are searching the Internet for a definitive list of City Attorneys in San Bernardino County and the Inland Empire.   Here is the information, which is current as of today (2/1/2012)  to the best of my knowledge.  Please note that I am not the City Attorney nor the Assistant City Attorney for any of these cities.

City of Adelanto:

 

Todd Litfin

Rutan & Tucker LLP

611 Anton Blvd. #1400

Costa Mesa, CA  92626

 

Town of Apple Valley:

 

John E. Brown

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario, CA 91764

 

City of Barstow:

 

Teresa Highsmith (Interim City Attorney)

Colantuono & Levin

300 S. Grand Ave. Ste 2700

Los Angeles CA 90071

 

City of Big Bear Lake:

 

Stephen Dietsch

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario CA 91764

 

City of Chino:

 

Jimmy L. Gutierrez

12616 Central Ave
Chino, CA 91710

 

City of Chino Hills:

 

Mark D. Hensley

Jenkins & Hogin LLP
Manhattan Towers
1230 Rosecrans Ave #110
Manhattan Beach, CA 90266

 

City of Colton:

 

Dean Derleth

Best Best & Krieger LLP
300 S Grand Ave 25th FL
Los Angeles, CA 90071

 

City of Fontana:

 

Clark Alsop

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario, CA 91764

 

City of Grand Terrace:

 

Richard L. Adams, II

Jones & Mayer

3777 N. Harbor Blvd.

Fullerton CA 92835

 

City of Hesperia:

 

Eric Dunn

Aleshire & Wynder LLP
18881 Von Karman Ave #400
Irvine, CA 92612

 

City of Highland:

 

Craig Steele

Richards Watson & Gershon

355 S. Grand Ave., 40th Floor

Los Angeles, CA 90071-3101

 

City of Loma Linda:

 

Richard E.  Holdaway

Robbins & Holdaway
201 W “F” St
Ontario, CA 91762

 

City of Montclair:

 

Diane E. Robbins

Robbins & Holdaway
201 W “F” St
Ontario, CA 91762

 

City of Needles:

 

John Pinkney

Slovak, Baron & Empey LLP
1800 E. Tahquitz Canyon Way
Palm Springs, California 92262

 

City of Ontario:

 

John E. Brown

Best Best & Krieger LLP

3500 Porsche Way, Suite 200

Ontario, CA 91764

 

City of Rancho Cucamonga:

James L. Markman

Richards Watson & Gershon
P O Box 1059
Brea, CA 92822-1059

 

City of Redlands:

Daniel J. McHugh

P.O. Box 3005

Redlands, CA 92373

 

City of Rialto:

Jimmy L. Gutierrez

12616 Central Ave
Chino, CA 91710

 

City of San Bernardino:

James F. Penman

300 North D Street

Sixth Floor

San Bernardino, CA 92418

 

City of Twentynine Palms:

Patrick Munoz

Rutan & Tucker

P.O. Box 1950

Costa Mesa, CA 92628-9990

 

City of Upland:

William P. Curley III

Richards Watson & Gershon
P O Box 1059
Brea, CA 92822-1059

 

City of Victorville:

Andre de Bortnowsky

Green, de Bortnowsky & Quintanilla

23801 Calabasas Rd. #1015

Calabasas, CA 91302-1595

 

City of Yucaipa:

 

David Snow (Interim City Attorney)

Richards Watson & Gershon

355 S. Grand Ave., 40th Floor

Los Angeles, CA 90071-3101

 

Town of Yucca Valley:

 

Lona Laymon

Aleshire & Wynder LLP
18881 Von Karman Ave #400
Irvine, CA 92612

 

Copyright 2012 Michael Reiter, Attorney at Law

City of Riverside Charter Change and the City Attorney’s Office

By Michael Reiter, Attorney at Law

I have previously written about the City of Riverside City Attorney’s Office.  In today’s Press-Enterprise, there is an article about proposed Charter changes that would limit the office of the City Manager.   The article is written by Alicia Robinson and is titled Charter changes would set limits on City Manager.  I do not know where it was located in the physical newspaper.

The section regarding the City Attorney’s Office is very interesting:

The other change removes the city manager’s authority over employees of the . . . city attorney. . . .

City Attorney Greg Priamos, who proposed the change, would only speak generally about it and would not comment on whether it was a response to a specific incident.

The charter now lets the city manager approve or disapprove hiring decisions of the city clerk and attorney. Priamos said he doesn’t think that matches the intent of the charter to keep those three positions independent.

“Having the city manager having any influence whatsoever on the personnel decisions of the city attorney can … impair the city attorney’s ability to provide independent, unbiased legal advice and counsel to my client,” which is the city as represented by the council, Priamos said.

. . .

. . . Barbara Purvis, a retired assistant city attorney . . . said she is puzzled as to why a charter change is needed. But city documents suggest former City Manager Brad Hudson was likely the impetus for the proposal.

According to documents released in response to a California Public Records Act request, former Deputy City Attorney Rachele [sic] Sterling filed an internal complaint in February alleging Hudson accessed her city emails because of her political support of Councilman Paul Davis, and because he wanted to know what city employees had told her about “improper and unethical practices in the public works department.”

In March, Sterling wrote to the council detailing alleged improprieties in awarding contracts, saying employees were directed to steer work to Hudson’s friends. Hudson and the city have denied the allegations and a city-commissioned outside legal investigation found no wrongdoing. Sterling was fired in May.

The city has never explained why Hudson was looking at the emails of one of Priamos’ subordinates, and officials have not clarified whether that could be a violation of attorney-client privilege. When asked in August, Hudson refused to say why he was looking at Sterling’s emails, but in documents from the outside law firm’s investigation, Hudson said he had heard complaints that Sterling was interfering in public works matters.

The report noted that Hudson “functioned as a supervisor” over Sterling and thus had the power under city policy to review her emails. Priamos said attorney-client privilege prevents him from discussing the email incident.

Purvis said it would be “totally improper” for anyone outside the city attorney’s office to review its employee emails. She’d like an explanation of the proposed change, she said, because the charter shouldn’t be altered without a compelling reason.

As background, Raychele Sterling was my immediate predecessor at the City of San Bernardino.  She returned to the City of Riverside in 2001, opening up the position of Deputy City Attorney in San Bernardino.  She was always very helpful to me both in the brief hour or so we discussed the cases and matters I was inheriting from her in San Bernardino, or to point me in the right direction in the Riverside City Attorney’s Office, or if I had a public works question.  I last spoke to her last year, in person, at Riverside City Hall, before her firing.  I have not spoken to her since, and I have no inside knowledge of what happened in Riverside beyond what has been reported in the Press-Enterprise.

Unfortunately, I was unable to find the charter committees proposals online, so I cannot explain the actual changes to the existing charter.  The committee will present its proposal to Council on January 24, 2012.

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 2012 Michael Reiter, Attorney at Law .

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Mailbag: The League of California Cities Ethical Princples for City Attorneys and the San Bernardino City Attorney

By Michael Reiter, Attorney at Law

Jeff Thurman of San Bernardino asked me this question on my Facebook page, and I told him on Facebook I would write about here at the blog:

“Would be interested in your take on CA City Attorney Code of Ethics regarding Mr. Penman’s activities in the last election.”

I do not know Jeff Thurman, I only know that he posted this on Gigi Hanna’s campaign website, which I had seen before today:

“Jeff Thurman I campaigned for David McKenna – if you’d like my help, please contact me.”

Here is some Background for people unfamiliar with the context of this election:  San Bernardino, a charter city in Southern California, had a primary election in November 2011.   David McKenna was a candidate for City Attorney in November 2011.  The incumbent, James F. Penman, won reelection.  Gigi Hanna is a candidate for City Clerk in the San Bernardino City General Election in 2012, after having been one of the top two candidates in 2011.  Amelia Sanchez Lopez was the top vote getter in the City Clerk’s race, and in the primary election, she shared elections signs with City Attorney James Penman.  City Attorney Jim Penman was first elected in 1987 and has been elected every four years since; he defeated City Attorney Ralph Prince, who first won election in 1959.  City Attorney Jim Penman’s opponents say that he is a polarizing figure, and have accused him of a variety of ills, including a lack of professionalism, including numerous ethics complaints to the State Bar of California over a number of years.  However, he has no public record of discipline by the State Bar of California

This blog is neutral politically, my only loyalty is to my clients, and I do not currently represent the City of San Bernardino, nor have I since January 2, 2006.

Mr. Thurman is asking about is not the California Rules of Professional Conduct or the California Business and Professions Code’s mandatory ethics rules and duties that each attorney in California must follow.  His reference  of “CA City Attorney Code of Ethics” is to a document properly called “Ethical Principals for City Attorneys” adopted on October 6, 2005 by the League of California Cities City Attorneys Department Business Section, and I believe (since I was at the conference as Assistant City Attorney for the City of Redlands, but I could find no citation) ratified by the City Attorney Section of the League of California Cities by a voice vote in May 2006.

There is some misunderstanding about this document, particularly in San Bernardino, and what it means.  First, the League of California Cities is not a governmental entity.  According to the League itself, the “League of California Cities is an association of California city officials who work together to enhance their knowledge and skills, exchange information, and combine resources so that they may influence policy decisions that affect cities.”

The League does wonderful work, particularly with its conferences.  I have attended a few League functions, and they are very educational.  I have been both to a League of California Cities Spring City Attorney’s Conference and the Annual Conference.  I was also the City of Redlands’ staff member for the League of California Cities, Inland Empire Division, Legislative Task Force for a period of time as Assistant City Attorney for the City of Redlands.  I also contributed to the League’s California Municipal Law Handbook by reviewing a section during my time in Redlands (the book is now published by CEB).

However, its injection into San Bernardino politics, is a red herring, for a few reasons to be discussed later.

Here is the preamble: of the Ethical Principles for City Attorneys:

Preamble

A city attorney occupies an important position of trust and responsibility within city government.  Central to that trust is an expectation and commitment that city attorneys will hold themselves to the highest ethical standards.  Every effort should be made to earn the trust and respect of those advised, as well as the community served.

The City Attorneys Department of the League of California Cities has therefore adopted these ethical principles to:

•   Serve as an aspirational guide to city attorneys in making decisions in difficult situations,

•   Provide guidance to clients and the public on the ethical standards to which city attorneys aspire, and

•  Promote integrity of the city and city attorney office.

City attorneys are also subject to the State Bar’s Rules of Professional Conduct.  For an explanation of how the rules apply to city attorneys, please see Practicing Ethics published by the League of California Cities in 2004, available at www.cacities.org/attorneys.   These aspirational ethical principles are not an effort to duplicate or interpret the State Bar’s requirements or create additional regulatory standards.

The role of the city attorney and the client city varies.  Some city attorneys are full-time public employees appointed by a city council; some are members of a private law firm, who serve under contract at the pleasure of a city council.  A few are directly elected by the voters; some are governed by a charter.  When reflecting on the following principles, the city attorney should take these variations into account.

The city attorney should be mindful of his or her unique role in public service and take steps to ensure his or her words and deeds will assist in furthering the underlying intent of these principles.

Note the statement that these principles are “aspirational ethical principles.”   Note also that the “role of the city attorney and the client city varies.”  That is certainly the case in the relatively few cities in California which are elected City Attorneys.  There are 11, and the link to the left tells you they are San Francisco, San Diego, Los Angeles, Compton, Huntington Beach, Oakland, San Bernardino, Long Beach, San Rafael and Chula Vista.

The preamble continues a “few are directly elected by the voters” which is a grudging nod to the peculiar institution of the elected city attorney in California.

To better understand what Mr. Thurman is talking about, former City Attorney candidate Marianne Milligan alleged, both in 2007 when she was running to be City Attorney and 2011 in an opinion piece in the Sun on August 25, 2011 that City Attorney James F. Penman, provided in part (I don’t have access to the full version, and this is only part of the version that is available elsewhere on the web):

It is important that we, the voters, understand that city attorneys in California are expected to abide by ethical principles adopted by the City Attorneys Department of the League of California Cities.

This universally adopted Code of Ethics states: There should be “no politicization” of the office of city attorney and more specifically states “the city attorney or persons seeking to become city attorney should not make campaign contributions to or participate in campaigns of that city’s officials.”

Marianne Milligan was my immediate supervisor at the time that I transitioned from a Deputy City Attorney in San Bernardino to become the Assistant City Attorney for the City of Redlands, and before that we were briefly Deputy City Attorneys together in San Bernardino (though she was of higher rank).  In that time, and since, I never had any problems with her either as a boss or as a coworker.  We last spoke when she was leaving Code Enforcement in 2010 and I believe that we are on good terms though we haven’t spoken since 2010.

I think that it is unfair to categorize a document which purports to be “aspirational ethical principles” and designed for the vast majority of city attorneys that are either in-house and appointed or are outside contract attorneys as “universally adopted.”

The “aspirational ethical principles” fail to take into consideration the needs of the eleven elected City Attorneys in California. And the basic fact is that an elected official inherently is involved in politics because they are elected.  It is also incorrect to say that city attorneys in California are expected to abide by the principles; the use of the passive voice is no doubt intentional, even the preamble says that the “aspirational ethical principles are not an effort to duplicate or interpret the State Bar’s requirements or create additional regulatory standards.”

Here is the politicization principle: from the aspirational principles:

Principle 3 (No Politicization).  The city attorney should provide legal advice in a manner that avoids the appearance that the advice is based on political alignment or partisanship, which can undermine client trust.

Explanation.  The city attorney and the city attorney’s advice needs to be trusted as impartial by the entire council, staff and community. 

 

Examples
1.        The city attorney should provide consistent advice with the city’s overall legal interests in mind to all members of the city team regardless of their individual views on the issue.
2.        Each city council member, irrespective of political affiliation, should have equal access to legal advice from the city attorney, while legal work on a matter consuming significant legal resources should require direction from a council majority.
3.        The city attorney or persons seeking to become city attorney should not make campaign contributions to or participate in the campaigns of that city’s officials, including candidates running for that city’s offices or city officers running for other offices.  For private law firms serving as city attorney or seeking to become city attorney, this restriction should apply to the law firm’s attorneys.

4.         When considering whether to become involved in policy advocacy on an issue that may potentially come before the city, the city attorney should evaluate whether such involvement might compromise the attorney’s ability to give unbiased advice or create the appearance of bias.

The example in 3 shows why this does not apply to the City of San Bernardino because the City Attorney has to participate in the campaign of at least one city official, their own.  A better guide of what the City Attorney should and should not do is the Charter of the City of San Bernardino.

The Charter of the City of San Bernardino, as amended in 2004, effective in 2006 reads:

Section 55. Position – Duties – Salary. (a) The office of City Attorney shall

be a full-time position, and the incumbent shall not engage in private practice.

(b) To be eligible to hold the office of City Attorney, the person elected or

appointed shall be an attorney at law, duly licensed as such under the laws of the

State of California, and shall have been engaged in the practice of law for at least

five (5) years prior to his/her election or appointment, and shall have been a

resident and elector of the City for a period of at least thirty (30) consecutive days

next preceding the appointment or the filing of nomination papers for election to the

office.

(c) In the event a vacancy shall occur in the office of City Attorney during

his/her term, such vacancy shall be filled by appointment by the Mayor and

Common Council, which appointment shall be valid until the next general municipal

election, at which time a City Attorney shall be elected for the remainder of any

unexpired term, or for a full term in accordance with Article II of this Charter.

(d) The City Attorney shall be the chief legal officer of the City; he or she

shall represent and advise the Mayor and Common Council and all City officers in

all matters of law pertaining to their offices; he or she shall represent and appear

for the City in all legal actions brought by or against the City, and prosecute

violations of City ordinances, and may prosecute violations of State law which are

misdemeanors or infractions and for which the City Attorney is specifically granted

the power of enforcement by State law without approval of the District Attorney, or

those violations which are drug or vice related; he or she shall also act and appear

as attorney for any City officer or employee who is a party to any legal action in his

or her official capacity; he or she shall attend meetings of the City Council, draft

proposed ordinances and resolutions, give his or her advice or opinion in writing

when requested to do so in writing by the Mayor or Common Council or other City

official upon any matter pertaining to Municipal affairs; and otherwise to do and

perform all services incident to his or her position and required by statute, this

Charter or general law.

(e) The salary of the City Attorney shall be fixed by the Mayor and Common

Council, but shall not be less than seventy-five hundred dollars ($7,500.00) per

annum. He/She shall be provided with office space and equipment, and clerical

help by the City.

That is the language of the Charter of the City of San Bernardino, and that gives the incumbent City Attorney some flexibility in operating.   Former City Attorney Ralph H. Prince had one type of style, which I know only from reading old newspaper articles, hearing from former city officials and his son, and old City Attorney opinions.  Current City Attorney Penman has a different style that he calls elected watch dog”.   That style is a political decision, and if the voters do not like the style of the incumbent, they can vote the incumbent out or recall the incumbent.  They can even try to change section 55, which the City Attorney’s opponents unsuccessfully attempted with Measure C in 2010.

Remember that the aspirational principles have not been adopted by any government agency, including the State Bar of California and the California Legislature, is not a fair question.  It is reminiscent of the song lyric: “we thought that we had the answers, it was the questions we had wrong.”  The introduction of these principles were a red herring to spread fear, uncertainty and doubt in the political process  because these voluntary aspirational ethical principles are not “universally adopted” and because they should not apply to a situation like in San Bernardino.  Voters should look to Charter section 55, and to the results of the office in judging the efficacy of an elected city attorney.

The proper method for evaluating the job of an elected city attorney is whether the legal advice given to the City as an entity is sound; whether the elected city attorney has done the things promised in their campaigns, whether the elected city attorney has observed the State Bar’s ethical rules, the dictates of the Business and Professions Code and the case law related to both, whether the elected city attorney is performing the duties given to them by the city’s charter, and whether the city attorney has performed the duties required by state law.

An appointed city attorney is a different creature than an elected city attorney.  An appointed city attorney serves at the whims of elected officials.  In a general law city with a five member council is just two votes from the unemployment line, if a quorum is three.   The appointed city attorney must be political in a different way.  However, it was the appointed city attorneys writing the voluntary aspirational principles, not the elected city attorneys.

Appointed city attorneys often just want to do their job (which is “political” with a small “p”) and avoid Election Politics. They don’t want to be hit up by everyone running for election.  The preamble of the voluntary ethical aspirations states that it exists to “provide guidance to clients and the public on the ethical standards to which city attorneys aspire.”    That means that if Council member A asks the appointed City Attorney to sign her nominating petition or make a donation to the campaign, appointed City Attorney can show her the voluntary aspirational principles and politely say that it is unethical to do so.

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 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law.

Address : 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Finding Out Who Owns A Piece of Infrastructure, Part Two

By Michael Reiter, Attorney at Law.

When someone is injured because they tripped and fell on a sidewalk, or in a field, or near a school, the immediate answer to who was responsible is not always readily apparent.  For example, cities often claim that the sidewalk is jointly controlled with a homeowner.  Some cities will cross-complain against the homeowner or other landowner.  Some will just assert that the homeowner is responsible and wait for the person injured, typically the plaintiff, to make a claim or file suit against the property owner.  The public entities that I have worked for were reluctant to cross-complain against a single family landowner because it could create a political problem.  Sometimes, a plaintiff, for a variety of reasons, does not want to sue one organization or another.  Since economic damages are joint and severable, that may be a judgment call a plaintiff is willing to take.  Another reason may be that the plaintiff or the plaintiff’s lawyer has failed to comply with the Government Claims Act.  Then, the defendant may wish to file a Government Claim and then file a cross-complaint for indemnification.

Yestersday, I discussed the probable owners of a parcel behind my office including  the related infrastructure.  When we left off, we found clues that it was owned and/or controlled by SANBAG and possibly BNSF, the successor to AT&SF.

Redlands Industrial Spur Utility Pole Without Wires

Here are some pictures that I took.  This shows a close-up of one of the many utility poles on this portion of the Redlands Industrial Spur without wires.  There is no indication on the pole, that I could find, what it was used for, but on the cross arm, you can find some old insulators.

Here is a view of the line of utility poles that lack working wires on the Redlands Industrial Spur in this location:

Redlands Industrial Spur With Tracks and Utility Poles

You can see Mount San Antonio in the background, and my red office building roughly in the middle.  To the left is Redlands Boulevard, formerly Highway 99.  Whether it is dedicated public right of way or not, there is evidence that people use the area between the trees and the utility poles for walking.  I saw one person when I was back there.

Redlands Industrial Spur Track, Missing Ties

You can see the track is elevated from the rest of the parcel.   To the north (generally) of the tracks is a culvert.   There is evidence that the track shown above was washed out by flooding.  The rails remain, but the ties are resting a few feet below.

Most of the infrastructure out there does not have an indicia of ownership.   For example, the utility poles lack a number like you might see on the joint poles along West Colton Avenue.  One exception is at the utility box closest to Tennessee.  On its side it says:

BNSF Emergency Call

Does that mean that BNSF controls this parcel, or the infrastructure on the parcel?  Not necessarily, but it is evidence of the fact.  The have an easement for rail freight.  The property, according to the information discussed yesterday is owned by SANBAG.  They acquired it from the BNSF’s predecessor, AT&SF in 1993.  BNSF was not formed until 1996, yet the stencil says BNSF, not AT&SF.  There is a toll-free phone number under “Call” but it is difficult to read.

The basic investigation (site visit, review of easily obtainable information online) of the property suggests that this infrastructure is owned by SANBAG and/or BNSF, but additional investigation would need to be done, either through public available information, or through discovery if a lawsuit was filed to reach a definitive conclusion.

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 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com