Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law Part Two

By Michael Reiter, Attorney at Law

When I wrote the original Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law article, I did not have the benefit of an article from the San Bernardino Sun.  Here’s the ordinance, which is still in force:

10.16.140 Removal of ignition key.
A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.
B. Any person convicted under this section shall be punished by a fine of not less
nor more than two dollars; and such person shall not be granted probation by
the court, nor shall the court suspend the execution of the sentence imposed
upon such person.
(Ord. MC-460, 5-13-85; Ord.3880 §2 (part), 1980; Ord.2613,1964; Ord. 1652 Art. 4 §14, 1941.)

A story in the San Bernardino Daily Sun on April 20, 1955, Page 13, gives some background to the crime problem in San Bernardino about 15 years after it was already adopted.  The article had a photograph and was headlined “S.B. 20-30 Club Seeks To Reduce Car Thefts.”

Members of 20-30 Club No. 3 have taken on the project of helping to reduce car thefts in San Bernardino.

Hundreds of motorists Saturday will find yellow cardboard key replicas under their windshield wipers with a warning that “keys in the car” is a direct invitation to auto thieves.

“The project is one of the many efforts of the 20-30 Club to help in building a better community,” said Lloyd E. Harmon, second vice president and project chairman.

Club officers pointed to recent statistics indicating that 55 per cent of juvenile crimes in the theft of cars are aided and abetted by persons leaving their keys in cars.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

W: http://michaelreiterlaw.com

The Notices of Intention to Circulate Recall Petitions in the Proposed San Bernardino Recall 2013

By Michael Reiter, Attorney at Law

Below are four of the Notices of Intention to Circulate A Recall Petition, or at least unexecuted and undated versions.  The originals were in PDF format which were printed with the home addresses of the petition signers were crudely redacted using a Sharpie Magnum Permanent Marker, and rescanned into PDF.

City Attorney James F. Penman

The reasons for the recall are listed by Scott Beard, the proponent, Wendy McCammack’s appointment to the City of San Bernardino Planning Commission, Rialto-based developer, and Seventh Ward resident:

The grounds for the recall are as follows: Mr. Penman is the duly elected City Attorney, and as such is accountable for the actions of that office and of his subordinates. Mr. Penman has been derelict in his official duties by failing to properly enforce the law regarding personal use of public property by members of the Common Council. In addition, Mr. Penman’s office’s selective enforcement of City codes and his failure to timely update and codify city codes, ordinances, and other matters lawfully passed by the City Council has created confusion and insecurity in the City’s residents and businesses regarding accuracy of the City’s published law.

Council Member Virginia Marquez, First Ward

The reasons listed for the recall in the Notice of Intention are listed by the proponent, Christian Fernando Flores (who was reported in the Sun as a student at California State University, San Bernardino):

The grounds for the recall are as follows: Council Member Marquez was elected to office
in November of 2009 and has since that time has failed to protect the health, safety, and welfare
of the residents of the City of San Bernardino and demonstrated dereliction to the duties of her
elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible
program leading to the misuse of the City’s General Fund. Council Member Marquez’s actions
and failures to act, have propelled the City of San Bernardino into financial crisis, and have led
to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City. The City
of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of
the bankruptcy and its proceedings.

Further, Council Member Marquez has violated the public trust by repeatedly failing to
reach consensus with the other members of the San Bernardino City Council on basic issues of
City finances, and ignored advice of the City’s Executive Staff for the previous two years
regarding financial concerns. Her actions have led to massive reductions in City services and
police and fire personnel, causing an increase in crime rates, businesses leaving the City, and
contributed to overall blight within the City.

Council Member Fred Shorret:

The proponent of the recall against Fred Shorett, 4th Ward Council Member, Stephen T. Dawson, who is the chairperson of the United  Transportation Union, states:

The grounds for the recall are as follows: Council Member Shorett was elected to office in March of 2009 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible program leading to the misuse of the City’s General Fund. Council Member Shorett’s actions and failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Council Member Shorett has violated the public trust by repeatedly failing to reach consensus with the other members of the San Bernardino City Council on basic issues of City finances which would allow the City of San Bernardino to emerge from the bankruptcy proceedings and begin revival of its economy. The City of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of the bankruptcy and its proceedings.

Mayor Patrick J. Morris:

Scott Beard, also the proponent of the recall against City Attorney James F. Penman, gives these reasons:

The grounds for the recall are as follows: Mayor Morris was elected to office in February of 2006 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by failing to veto fiscally irresponsible votes and fiscally irresponsible programs leading to the misuse of the City’s General Fund. Mayor Morris’s [sic] failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Mayor Morris has violated the public trust by repeatedly failing to facilitate consensus with the members of the San Bernardino City Council on basic issues of City finances, and ignored advice of the City’s Executive Staff for the previous two years regarding financial concerns. His action and inaction have led to massive reductions in City services and police and fire personnel, causing an increase in crime rates, businesses leaving the City, and contributed to overall blight within the City.

The original PDFs, which are not the embedded redacted versions you see here, have some metadata that explains a little about the origin of the PDFs that were obtained. The Notice of Intent  involving Mayor Patrick J. Morris was created on April 28, 2013 at 10:04:50 PM, with the application being Microsoft Word 2010, with “Michael” listed as the author.  The Notice of Intent to Virginia Marquez  was titled C:\My Files000 — SanBernardinoMatter\NOI.2013.1stWard(Marquez).wpd, also authored by “Michael.”  It was created on April 28, 2013 at 2:19:17 PM.  The original file was on WordPerfect (as you can see by the extension), but the PDF was created by Acrobat Distiller 9.0.0. The Fred Shorret document was created by Microsoft Word 2010, also authored by “Michael.”  It was created on April 28, 2013 at 3:40:59.  The City Attorney James F. Penman document was also on Word 2010, on April 28, 2013, at 10:00:13.

What does this metadata mean?  That whoever created the PDF (but not necessarily the author of the petitions), was named Michael, and that at least one of the documents was created on WordPerfect.  WordPerfect is, or was, largely used by attorneys. No conclusions can be drawn from this metadata.  The Michael may refer to Michael McKinney, the Orange County-based publicist for the recall proponents.  It could be someone else entirely.

Unfortunately, the petitions to recall Second Ward Council Member Robert Jenkins, Third Ward Council Member John Valdivia, Fifth Ward Council Member Chas Kelley, Sixth Ward Council Member and Mayoral Candidate Rikke Van Johnson and Seventh Ward Council Member Wendy McCammack were unavailable.

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.

A: 1255 W. Colton Ave. Suite 104,
Redlands, CA 92374
T: (909) 708-6055

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.

A: 1255 W. Colton Ave. Suite 104,
Redlands, CA 92374
T: (909) 708-6055

Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law (and you’ll be fined $2 before P&As).

By Michael Reiter, Attorney at Law

When I was a Deputy City Attorney for the City of San Bernardino, I never once saw this section enforced, with its circa 1964 $2 fine:

10.16.140 Removal of ignition key.
A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.
B. Any person convicted under this section shall be punished by a fine of not less
nor more than two dollars; and such person shall not be granted probation by
the court, nor shall the court suspend the execution of the sentence imposed
upon such person.
(Ord. MC-460, 5-13-85; Ord.3880 §2 (part), 1980; Ord.2613,1964; Ord. 1652 Art. 4 §14, 1941.)

What’s the background on this law?

First, the 1941 ordinance, Ordinance 1652 is available online.  The ordinance repeals a variety of ordinances and adopts an overarching scheme for regulating traffic in the City of San Bernardino. Difficulty?  Article 4 has no section 14.  Another added difficulty, is that I didn’t see any similar language anywhere in the text of the ordinance. However, the language (especially the two dollars) sounds archaic.

The Municipal Code annotation is incorrect, because the section does not come from Ordinance 1652 as originally adopted.  Ordinance 2613 from 1964 amended Ordinance 1652 by adding section 14.  There is no legislative history or findings in the ordinance itself (and there are no minutes online), which reads in pertinent part:

 SECTION FOURTEEN: No person having charge or control of a
motor vehicle shall allow such vehicle to stand upon any street,
alley or parking lot upon which there is no attendant, when such
motor vehicle is unattended, without first locking the ignition
of said vehicle and removing the ignition key from such vehicle.
Any person convicted under this Section shall be punished
by a fine of not less nor more than Two Dollars ($ 2. 00); and such
person shall not be granted probation by the Court, nor shall the
Court suspend the execution of the sentence imposed upon such
person.

Ordinance 3880 (November 20, 1979) (not 1980 as shown in the annotations), Section 2 amended Section 14 to be titled SECTION FOURTEEN: Removal of Ignition Key.

The ordinance was codified in 1980, I believe, but I have not seen that ordinance.  It divided it into section (a) and (b), capitalization was changed, as was the reference to ($2.00) in section (b).

MC-460, Section 120, enacted May 15, 1985, amended the codified version, 10.16.140(a) to read:

A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.

The backup from the City Attorney’s Office included removing archaic laws, but apparently, section B remained.

Item 7i on the July 2, 2012 agenda included a re-adoption of this section as part of a cleanup regarding reorganized departments, however, upon watching the video of that meeting (there does not appear to be minutes available online), it was tabled on a 7-0 motion by Council Member Wendy J. McCammack because of the need for further reorganization by the City Manager.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

W: http://michaelreiterlaw.com

City of San Bernardino returning California Mobilehome Parks Act responsibility back to the State of California

By Michael Reiter, Attorney at Law

Yesterday, at the October 1, 2012 meeting of the Mayor and Common Council, the council voted 6-0 (with Council member Wendy McCammack absent) to lay over for final adoption an ordinance repealing San Bernardino Municipal Code Chapter 15.55 and returning responsibility for enforcing the California Mobilehome Parks Act to the State of California through the Department of Housing and Community Development.  A substitute motion proposed by staff to transfer responsibility to the code enforcement division was withdrawn.

When I was a Deputy City Attorney for the City of San Bernardino, I had to review every mobilehome notice of violation before they were issued. Long-time readers of this blog will remember that I was hired about a month after the City’s closure of the Cypress Inn Mobilehome Park and the Valente Duran letter.

Because of cut backs related to the City’s bankruptcy, the staff responsible for the inspections was cut.   The move to return responsibility to the state will save about $100,000 according to the staff report, a rather small amount of the City’s budget.

During the roughly sixteen minute discussion, City Attorney James F. Penman said that the need for local inspections was great, that the condition of the City’s mobilehome parks had deteriorated in the last ten to fifteen years, that he didn’t know the solution, because he was confident that code enforcement did not have sufficient training to do the job.

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.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

The Wrong Answer to Post-Bankruptcy San Bernardino

By Michael Reiter, Attorney at Law

There is a lot of misinformation out there about the City of San Bernardino regarding proposed reform efforts to the system of government for the City of San Bernardino.

One was a suggestion to transform the City of San Bernardino from a Charter city to a general law city.  There are generally benefits to being a charter city in that you have a modicum more home rule then a general law city.  However, if people think that converting to a general law city will get rid of the ward system they are mistaken for two reasons.  First, general law cities can have elections by district.  Redlands (a general law city), briefly, had elections by district, and Colton, a general law city, still has districts.

Second, when City Attorney Penman suggested a charter measure to do away with the ward system, he was met with challenges from rights groups.  I believe that effort was before the California Voting Rights Act was passed, which makes it easier to prove dilution in an at-large election.

If the City of San Bernardino’s structure (the composite Strong Mayor, Strong City Manager, Strong Council Form of Government) is the problem, removing the Charter gives the residents less choice in creating a government. If this is just an end-run to trying to get rid of the elected City Attorney, the voters have already shown with the resounding defeats of Measures C and M that they do not want that.  Going to a general law council-manager form of government would not have prevented this kind of insolvency, because if there were illegal activities by staff, they council still would not detect it, and if the council refused to listen to staff regarding the need for cuts, it wouldn’t matter if they were elected according to general law or a charter.

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.

A: 1255 W. Colton Ave. Suite 104,
Redlands, CA 92374
T: (909) 708-6055

City of San Bernardino Bankruptcy: What Did They Know and When Did They Know It?

By Michael Reiter, Attorney at Law

We do not yet know the full story about what went wrong as far as misstatements or miscalculations (incompetence) or concealment (fraud) of numbers in the City of San Bernardino that led to the situation wherein the City of San Bernardino had or has, at some point, less than $150,000 in its bank account.

First, from primary sources, City staff (on July 9, 2012) stated that as of April 3, 2012, City staff was still misreporting the fund balance.

The Finance Department of the City of San Bernardino created a report, dated July 9, 2012 , Page 7:

Starting General Fund balance has been erroneously stated for the past 2 fiscal
years

Fiscal Year                                July 1st Audited Fund Balance              Staff Reported Fund Balance
FY 2009-2010                           $2,708,319                                                     $2,557,900
FY 2010-11                               $410,293                                                             $1,770,400
FY 2011 -12                              $(1 ,181,603)                                                       $2,044,100*
*Mid-Year report presented April 3, 2012.

Going back to the April 3, 2012 meeting in the City of San Bernardino’s online archives, I was unable to find any minutes after January 23, 2012.  Here is the April 3, 2012 Agenda for the Joint Adjourned Regular Meeting of the Mayor and Common Council.

In a staff report by Rebecca Garcia, through City Manager Charles McNeely, for Item 3A, the purpose of the workshop was to “Discuss proposed revenue enhancements and cost containment strategies and provide direction
as to measures to be researched and presented for further Council review, analysis and consideration at a future meeting.”  This staff report includes the chart that gives the $2,044,100 opening fund balance for FY 2011-2012, but also has a different number (then in the July 9, 2012 report) for 2010-2011: $2,998,000.

In the staff report by Jason Simpson, Director of Finance, for Item 1A,  on the April 3, 2012 agenda he warns on Page 10:

A major concern that needs to be noted is that the City’ s General Fund continues to be in an
increasing weakening condition and immediate changes need to be made to reverse this financial
condition, build the General Fund Reserve, and stabilize this fund. If these efforts are not made,
insolvency or bankruptcy may result. The Council has an opportunity to resolve the issue and
change the City’ s course. If not, control may be taken out of the Council’ s hands. [Emphasis Added]

However, on packet page 12, Jason Simpson’s report gives the opening fund balance for 2012 as $2,044,100.

Imran Ghori wrote an article published April 3, 2012 at 9:15 p.m., “San Bernardino: City Faces $3.8 millon shortfall[;] The decline in sales and property taxes are hurting the city, a mid-year budget report shows.”  The story starts:

San Bernardino could be headed for insolvency or bankruptcy if it’s not able to get its general fund budget under control, according to a mid-year budget report presented to the mayor and City Council on Tuesday. [Emphasis Added].

The first time the fund balance issue was in the traditional press is in The Sun, “San Bernardino facing bankruptcy if deep cuts aren’t made” by Ryan Hagen, posted online on July 7, 2012 at 8:13:10 p.m. PDT.  In the article, “

“[Council member Wendy] McCammack also said she was troubled by the budget report’s note that the general fund’s starting balance has been erroneously stated for the past two fiscal years.

That reached a peak several months ago, when then-City Manager Charles McNeely said the fund had a balance of $2 million but the audited fund balance on July 1 turned out to be in the red by $1.2 million.

It appears that the first time that City Attorney James F. Penman mentioned, in public, that 13 out of 16 budgets may have been falsified (and I am paraphrasing from the press account) was at the July 9, 2012 Council Meeting.

As far as what did people know and when did they know it, the rest is from press articles. This article, from public radio station KPCC, “San Bernardino authorities confirm probe into city finances” by Steven Cuevas with Nick Roman, posted 6:00 a.m. on Friday, July 13, 2012 says:

Before the San Bernardino City Council’s bankruptcy vote Tuesday, City Attorney Jim Penman announced that unidentified city administrators had cooked the books to make it appear the city had more cash in reserve than it actually had.

The alleged deceit was uncovered during an audit by new finance staff working under interim city manager Laura Travis-Miller, who took over four months ago.

. . .

Sixth District [sic] councilman Rikke van [sic] Johnson said Penman gave a short briefing to council members prior to the council’s emergency budget meeting Tuesday. But he said it was short on details.

“It wasn’t nothing as far as, ‘OK, this year that happened’ or ‘that year, this happened’ or anything like that,” said Van [sic] Johnson.

“There wasn’t no specifics, other than he said that it’s under investigation. And unfortunately, what was said in that so-called briefing should have stayed in that so-called briefing and went to the right parties. Because we’re dealing with an even bigger issue then that that as far as bankruptcy. All the sudden your issue becomes the lead issue when it shouldn’t be.”

Presumably, this information was given in closed session.
This blog piece comes from an interview yesterday with Interim City Manager Andrea Travis-Miller:  The piece appears in the Los Angeles Times Blog LA NOW, posted July 13, 2012 at 7:25, by Abby Sewell and Phil Willon, labled “Criminal Probe

Miller said the city’s financial problems had been evident for many years, but the full scope was not evident until more recently, when she and the new finance director took a hard look at the books.

She said there had been inaccurate financial reporting in the city for many years, which delayed the process of understanding the full financial picture, but she said she had not seen evidence of deliberate wrongdoing.

“I have not found that there’s anything more than negligence, maybe sloppiness,” she said, adding that staffers at the time were stretched thin because of cuts.

Andrea Travis-Miller became acting City Manager on May 8, 2012, but was assistant before.  Jason Simpson began work on March 28, 2012.  So, if the quotes from Andrea Travis-Miller are correct, the problem was found sometime between March 28, 2012 and when the July 9, 2012 report was posted.

Bankruptcy was first mentioned in the April 3, 2012 staff report.  The misstating of the fund balance was found some time after March 28, 2012, but not reported on April 3, 2012 by Jason Simpson in his staff report.  The first public document showing the wrong data for two years was in a report for the July 9, 2012 meeting.  Time will tell  what they knew, and when they knew it.

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.

A: 1255 W. Colton Ave. Suite 104,
Redlands, CA 92374
T: (909) 708-6055

What Charter Reform Measures Might Have Helped the City of San Bernardino Avoid Bankruptcy? An Elected Auditor and an Elected City Prosecutor.

By Michael Reiter, Attorney at Law

We do not yet know the full story about what went wrong as far as misstatements or miscalculations (incompetence) or concealment (fraud) of numbers in the City of San Bernardino that led to the situation wherein the City of San Bernardino had or has, at some point, less than $150,000 in its bank account.  Some political campaigns in San Bernardino County have more than that in their accounts right now.

The Finance Department of the City of San Bernardino created a report, dated July 9, 2012, that blames, on page 1 in the Executive Summary:

. . . the City is still facing insolvency due to a variety of issues including accounting errors, deficit spending, lack of revenue growth, and increases in pension and debt costs.

Something went wrong with the way government is supposed to work, with checks and balances regarding these unspecified accounting errors.

The Charter of the City of San Bernardino has a variety of checks and balances, and there are also external checks and balances in the municipal system of government from California law and to some extent in Federal law.

Within today’s Charter, there are eleven elected officials in the City of San Bernardino: Council members from seven geographical wards, an elected Mayor, an elected City Clerk, an elected City Treasurer, and an elected City Attorney. However, the structure if the City lacks an appropriate check and balance to find either a well-concealed fraud, or even a miscalculation of numbers that appeared on financial reports but did not reflect actual amounts.

Here is the problem, from the same July 9, 2012 report, Page 7:

Starting General Fund balance has been erroneously stated for the past 2 fiscal
years

Fiscal Year                                July 1st Audited Fund Balance              Staff Reported Fund Balance
FY 2009-2010                           $2,708,319                                                     $2,557,9oo
FY 2010-11                               $410,293                                                             $1,770,400
FY 2011 -12                              $(1 ,181,603)                                                       $2,044,100*
*Mid-Year report presented April 3, 2012.

Shouldn’t an audit have found the problem? Maybe, but if there was actual fraud, it can be difficult to find because some skilled in financial deceit can falsify document to make the numbers match up.  Even if a skilled City Council member with a background in accounting exists, they probably won’t find the discrepancy.   However, from these numbers, it seems that an audit did catch these numbers, though it doesn’t say when and who it was reported to.

What about the City Treasurer?    The Treasurer’s Duties are:

The Treasurer shall receive and pay out all moneys belonging to the City, and shall keep an account of all receipts and expenditures, under such rules and regulations as may be prescribed. He/She shall make a
monthly statement to the Mayor and Common Council of the receipts and expenditures of the preceding month, and shall perform all duties required of him/her by law and the Mayor and the Common Council. He/She shall not pay out any monies belonging to the City except on claims presented, allowed and submitted in the manner provided by this Charter.   Charter section 70.

However, if numbers are falsified by members of the Finance Department (which the Charter gives day-to-day supervision to the City Manager), the City Treasurer’s Office may not catch the problem.

What then, is the answer?  Part 1, Create a City Auditor, like the City of Los Angeles Controller, that is elected and has the power to audit, investigate, and request prosecution or discipline according to the needs of the situation.

The Controller in Los Angeles, per the Los Angeles City Charter, has these duties:

BookmarkSec. 260.  Auditor and General Accountant.

The Controller shall be the auditor and general accountant of the City and shall exercise a general supervision over the accounts of all offices, departments, boards and employees of the City charged in any manner with the receipt, collection or disbursement of the money of the City.  The Controller shall be elected as provided in Section 202.

BookmarkSec. 261.  Powers and Duties.

The Controller shall:

(a)     appoint assistants, deputies, clerks and other persons as the Council shall prescribe by ordinance;

(b)     prescribe the method of keeping all accounts of the offices, departments, boards or employees of the City in accordance with generally accepted accounting principles, except that any change of the system of accounting shall first be authorized by the Council;

(c)     regularly review the accounting practices of offices and departments and upon finding serious failings in accounting practices, be empowered to take charge of the accounting function, and thereafter assist the office or department in implementing appropriate accounting standards and practices;

(d)     maintain a complete set of accounts which shall be deemed the official books and accounts of the City, which shall show at all times the financial condition of the City, the state of each fund, including funds of departments responsible for managing their own funds, the source from which all money was derived and for what purposes all money has been expended;

(e)     in compliance with generally accepted government auditing standards, audit all departments and offices of the City, including proprietary departments, where any City funds are either received or expended; be entitled to obtain access to all department records and personnel in order to carry out this function; establish an auditing cycle to ensure that the performance, programs and activities of every department are audited on a regular basis, and promptly provide completed audit reports to the Mayor, Council, and City Attorney and make those reports available to the public;

(f)     maintain a reconciliation between the accounts in all offices and departments with the accounts in the Controller’s office, and from time to time, verify the condition of all City funds in the City Treasury, and report to the Mayor and Council thereon;

(g)     allocate among the several respective funds all public money at any time in the City Treasury not otherwise specifically allocated and appropriated by law or ordinance, and promptly notify the Treasurer of the allocation or appropriation;

(h)     report to the Mayor and Council, at times established by law, the condition of each fund, and make other reports as the Mayor or Council requests;

(i)     maintain each fund on a parity with its obligations at all times by transferring from the Reserve Fund as a loan to any fund which may become depleted through tardy receipt of revenues, and upon receipt of revenues sufficient to make an allocation as will restore each fund to parity, retransfer the amount of the loan to the Reserve Fund;

(j)     monitor the level of debt incurred by the City and report periodically to the Mayor and Council on City debt; and

(k)     conduct performance audits of all departments and may conduct performance audits of City programs, including suggesting plans for the improvement and management of the revenues and expenditures of the City.  Nothing in this subsection shall preclude the Mayor or Council from conducting management studies or other review of departmental operations.

BookmarkSec. 262.  Approval of Demands on Treasury.

(a)     The Controller shall, prior to approval of any demand, make inspection as to the quality, quantity and condition of services, labor, materials, supplies or equipment received by any office or department of the City, and approve before payment all demands drawn upon the Treasury if the Controller has adequate evidence that:

(1)     the demand has been approved by every board, officer or employee whose approval is required by the Charter or ordinance;

(2)     the goods or services have been provided, except that advance payment may be authorized by ordinance for specified categories of goods and services;

(3)     the payment is lawful;

(4)     the appropriation for the goods or services has been made;

(5)     the prices charged are reasonable;

(6)     the quantity, quality and prices correspond with the original specifications, orders or contracts; and

(7)     any additional criteria established by ordinance have been satisfied.

(b)     Notwithstanding subsection (a), the Controller shall delegate to the various offices and departments the duties of inspection of goods and services and approval of demands, in accordance with methods for inspection and approval established by the Controller, but the Controller may suspend the authority delegated pursuant to this subsection upon a finding of abuse of that authority or on a determination that the office or department lacks adequate controls to exercise that authority properly.  In the event of suspension of the authority delegated pursuant to this subsection, the Controller shall assist the office or department to achieve adequate controls and standards prior to reinstatement of that authority to the office or department.

(c)     The Controller shall withhold approval of any demand, in whole or in part, if there is a question as to whether it is improper, illegal, or unauthorized, and immediately file a report with the Mayor and Council stating the objections to the demand.  The Council shall promptly consider the report and may overrule or sustain the objections of the Controller.

(d)     The Controller shall keep a record of all demands on the Treasury approved by the Controller and of all demands to which objections have been made and overruled.

BookmarkSec. 263.  Approval of Expenses of Controller.

All demands for the expenses of the office of the Controller shall, before payment, be presented to the Mayor, who shall have the same powers as to approval or disapproval as are exercised by the Controller in the case of other demands. The action of the Mayor shall be subject to review by the Council.

BookmarkSec. 264.  Reduction of Demand on Treasury.

No demand upon the Treasury shall be allowed by the Controller in favor of any person or entity indebted to the City without first deducting the amount of the indebtedness, to the extent permitted by law.

BookmarkSec. 265.  Payment of Bonds.

Nothing in this Article shall be construed as interfering with or preventing the payment by the Treasurer of principal and interest on bonds payable by the City in accordance with the California Constitution, laws and ordinances authorizing the issuance and payment of those bonds.

BookmarkSec. 266.  Periodic Surveys of Proprietary Departments.

(a)     The Controller, Council and Mayor shall jointly cause, at least once in every five years, an industrial, economic and administrative survey to be made of the business and property of each of the Harbor, Water and Power and Airports Departments and shall select an independent qualified industrial engineer or organization specializing in such surveys to conduct the survey.  The cost of each survey shall be paid for from the funds of the surveyed department.

(b)     Each survey shall be made in consultation with the Mayor and City Council to ascertain if the surveyed department is operating in the most efficient and economical manner.

(c)     A copy of the report of each survey shall be transmitted to the Mayor, Council, and board of the surveyed department and shall be made available to the public.

Solution Part 2: Create an Elected City Prosecutor.  The City Attorney in San Bernardino is already the City prosecutor.  However, by splitting the functions, the City will have the best of both worlds.  An elected City Attorney will give advice to the City as an entity without the fear of being fired for not giving advice to the other elected officials in power, and a City prosecutor can prosecute violations of the Municipal Code and the areas of State law given by Charter or state law with the independence necessary, with the independently elected City Auditor, to root out these kinds of corruption.

If an elected City Attorney is an elected watchdog, a City Prosecutor would be doubly so.  The City Attorney’s client is the City of San Bernardino, the entity, and the City Attorney must protect the entity’s pocket book.  The role of exposing corruption sometimes is at odds with that goal.  Adding a separate elected City Prosecutor can rectify that situation and protect, in the long run, the People’s interest without regard to the City’s financial interest.

Of course, the bad numbers shown above do not add up to the alleged deficit, but if Council members were going on the correct numbers to start with, perhaps they would not have made the political choices that led to the fiscal emergency.

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.

A: 1255 W. Colton Ave. Suite 104,
Redlands, CA 92374
T: (909) 708-6055

Codification of the San Bernardino Municipal Code: A 2012 Update

By Michael Reiter, Attorney at Law

In 2011, I wrote two pieces on codification of the San Bernardino Municipal Code, and an update on the situation.

From the second piece:

To recap, The Mayor and Common Council, at their November 7, 2011 meeting, passed Resolution 2011-299 Authorizing the issuance of a Request for Proposals for Municipal Code Codification Services.  The staff report to the Resolution painted this unflattering picture of how behind the City is in codification:

Table 1.1 Code Supplement Distribution History from 2008 through 2011

Time Period Distribution Date Note
1/2008 to 3/31/2008 4/2008 on schedule
4/2008 to 6/30/2008 7/2008 on schedule
7/2008 to 9/30/2008 11/2008 1 month behind schedule
10/2008 to 12/31/2008 9/2009 8 months behind schedule
1/2009 to 3/31/2009 9/2009 5 months behind schedule
4/2009 to 6/30/2009 9/2009 2 months behind schedule
7/2009 to 9/30/2009 10/2009 on schedule
10/2009 to 12/31/2009 1/2010 on schedule
1/2010 to 3/31/2010 3/23/2010 1 week ahead of schedule
4/2010 to 6/30/2010 2/2011 7 months behind schedule
7/2010 to 9/30/2010 2/2011 4 months behind schedule
10/2010 to 12/31/2010 Not yet distributed 9 months behind schedule
1/2011 to 3/31/2011 Not yet distributed 6 months behind schedule
4/2011 to 6/30/2011 Not yet distributed 3 months behind schedule
7/2011 to 9/30/2011 Not yet distributed Due this month

What that means is that it is difficult for the lay observer and the outside professional to find out the state of the law.

The Mayor and Common Council will consider, at the February 7, 2012 meeting, awarding  the Code Publishing, Inc. of Seattle, Washington.  However, in the staff report and the resolution, you can see tension between the City Attorney’s Office and the City Manager’s Office:

Proposals were then evaluated by a selection committee comprised of City staff representing the City Clerk’s and City Manager’s offices, Public Works, Information Technology, and Community Development departments. The City Attorney’s Office was invited to participate and identified a representative from their office to take part in this process. The representative was present during one of the presentations; however, the City Attorney’s Office was unable to attend the other presentations and did not participate in the evaluation process.  [Emphasis added]

The selection committee recommends that Code Publishing, Inc., be awarded the contract. While all of the codification companies are qualified to provide the needed services, Code Publishing, Inc., received the highest ranking scores based on their flexible pricing, customer service-oriented approach, quality of electronic publishing and internet services, and legal publishing expertise.

. . .

Recodification and the regular distribution of supplement materials is a necessary undertaking to maintain transparency of the City’s Code. It is the City’s responsibility to maintain its laws in a current and comprehensive format. When the Code contains conflicts or discrepancies and outdated or incorrect references it cannot be an effective tool for residents and enforcement officials to follow and enforce the laws with consistency and accuracy. Moreover, the public, including property and business owners and developers, are poorly served by not having access to updated codes in order to assess information necessary when, for example, applying for business registrations, building permits, or planning new development options.

Outsourcing codification services is a standard practiced by most California cities. A recent survey conducted by staff shows that 91 percent of California cities outsource codification services. Of the 362 cities governed by general law, 332 or 92 percent of cities outsource codification services. Of the 120 charter cities in California, 105 or 88 percent of cities outsource codification services. Within the group of charter cities, 9 or 82 percent of the 11 charter cities that elect a city attorney outsource codification services. [Emphasis added]

By outsourcing services, the City will be able to promptly provide subscribers with quarterly supplements while reducing the time the City Attorney’s and Clerk’s offices and the Planning Division devote to codifying, indexing, proofreading, publishing, and distributing activities. While the City Attorney’s Office is responsible for drafting proposed ordinances and resolutions, the Planning Division is responsible for updating changes to the Development Code (Title 19). Title 19 is one of the most dynamic sections of the Code with the largest number of annual amendments (20 amendments in three years).

The mostly unexecuted version of the resolution says “decline to sign” and the initials “JFP.” City Attorney James F. Penman has declined to approve the resolution as to form.  From time to time, the City Attorney does not sign resolutions or agreements.  The reasons he declined to do might be found by examining the minutes and video of the November 7, 2011 Council Meeting.

Video on the discussion surrounding the item is available on the City’s website, and the item is about at the 3:37:00 mark. For context, the meeting was the day before the Primary Municipal Election. City Attorney Penman said that the first he heard about it was when it appeared on the agenda.  He said the situation was low priority and created by Council not fully funding the City Attorney’s Office, because the Legal Secretary II responsible has been taken off codification and placed on litigation.  He took issue with the cost of $40,000, and said it could be done for $10,000 using a part-time legal secretary without benefits.

Council member McCammack said that City Manager McNeely’s staff had politicized the issue.  She also said that it was more important to pay the $40,000 in defending the liability cases.

Council member Marquez asked about other cities contract with vendors, and City Clerk Rachel Clark said that the Clerk’s Office did a survey but that she didn’t have the numbers with her at the Council Meeting.

Council Member Jenkins said that the money could be better used on potholes, trimming trees or broken street lights.

Council member Kelley had concerns that sending out the RFP would start an unavoidable path to paying for outside codification.

City Attorney Penman said that the biggest request was to annotate the code and Charter with case law, and the codification company would charge extra. City Attorney Penman said that they were ahead of schedule a year before, but that staff had been taken off of it, and that it was not high priority.

Mayor Morris said that the City Attorney’s Office would be part of the RFP process.

Council member McCammack asked which staff would be involved with the codifier to make sure the codifier was making accurate changes to the code.  City Manager McNeely said that the City Attorney and City Manager and City Clerk’s Office would be involved, and that mostly the City Clerk’s Office would be involved.

City Clerk Clark highlighted the times that the City Attorney’s Office was late in the quarterly updates, but when confronted said that it had been on time before the highlighted period.  She also said that it was during Tom Minor’s administration that it came in-house.  Council member McCammack said the item was a political ploy to embarrass the City Attorney’s Office.
The first public speaker said that it was difficult to find the code online, particularly related to code enforcement.  The second speaker was then-City Clerk candidate Esther Jimenez discussed an issue regarding a proposed tobacco ordinance in the past which wasn’t really related to the discussion (and City Attorney Penman disputed her view of the events).
City Attorney Penman disputed the part of the RFP that there was a need to make corrective measures to the existing code, and he said that Council had blocked some moves already proposed by the City Attorney’s Office, and that his Office didn’t have the resources to make the needed changes.  City Attorney Penman said that all hands were defending lawsuits so that no one could participate in the selection process.

The Common Council voted on strictly partisan lines.  According to the minutes of November 7, 2011, Resolution 2011-299 was passed on a 4 to 3 vote with Council members Virginia Marquez (1st Ward), Tobin Brinker (2nd Ward), Fred Shorett (4th Ward) and Rikke Van Johnson (6th Ward) in favor; Robert Jenkins (2nd Ward), Chas Kelley (5th Ward) and Wendy McCammack (7th Ward) opposed.
Update:  The Common Council voted 5-2 (Shorett and Johnson opposed) to continue the item to March 19, 2012, where, given the new majority will most likely be defeated, if it even comes to a vote.

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.

Address : 1255 W. Colton Ave., Suite 104
Redlands, CA 92374
Telephone: (909) 708-6055

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.

Address : 1255 W. Colton Ave., Suite 104
Redlands, CA 92374
Telephone: (909) 708-6055
Follow

Get every new post delivered to your Inbox.

Join 45 other followers