By Michael Reiter, Attorney at Law
This blog does not deal with politics. My clients come from across the political spectrum, and even if I have an opinion, I don’t agree with it. When you work directly for a public entity, it is best to keep your political opinions to yourself. When you work in the private sector, that’s also good advice.
With yesterday’s announcement of a non-incumbent seeking the position of the City Attorney, I thought I would give some legal perspective on the Office of the City Attorney in San Bernardino. As long-time readers of this blog know, I was a Deputy City Attorney for the City of San Bernardino for almost five years in the first half of the last decade. I learned much of what I know about civil and criminal litigation and municipal law while a Deputy City Attorney, and I am thankful for the opportunity to serve the people of San Bernardino and the entity for that time.
As I stated in my post about elected city attorneys in California, San Bernardino has an elected City Attorney. San Bernardino has been a charter city since 1905, and the Charter has been amended from time to time since then. The current Charter took effect on March 6, 2006. An annotated version can be found at the City’s website.
Charter Section 55 details the duties and function of the “office of City Attorney:”
San Bernardino City Attorney is a full-time position, and the incumbent cannot engage in private practice. Charter, section 55(a). The eligibility requirements is that the person elected or appointed must be a licensed California attorney, and be engaged in the practice of law for at least five years before his or her election or appointment, and must be a San Bernardino city resident and elector for thirty consecutive days before the appointment or filing of nomination papers for election or appointment. Charter, section 55(b). If the office becomes vacant, the vacancy is filled by the Mayor and Common Council. The appointment is valid until the next general municipal election, and the City Attorney must be elected for the remainder of the term, or for a full term in accordance with Charter Article II. Charter section 55(c).
The City Attorney is the City of San Bernardino’s chief legal advisor, the City Attorney “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.” Charter section 55(d). I have not paraphrased the majority of San Bernardino Charter section 55(d) because there are actual political disputes about the wording found in the Charter. I will not recap those disputes, but the reader can see the black letter law of the Charter. The ability to prosecute violations of State law are not currently being used. Some larger cities use the City Attorney’s Office to prosecute misdemeanors. While I never encountered it in San Bernardino, in Redlands, I would get calls from Los Angeles attorneys about DUIs. In San Bernardino (city and county), those are prosecuted by the District Attorney’s Office. To the extent that state law misdemeanors were ever prosecuted by the City Attorney’s Office in San Bernardino, my understanding is that duty was taken over by the San Bernardino District Attorney’s Office in the early 1980s.
The City Attorney’s salary is fixed by the Mayor and Common Council, but it can’t be less than $7,500.00 a year. The City Attorney shall be provided with office space and equipment, and clerical help by the City. Charter section 55(e).
The City Attorney is mentioned elsewhere in the Charter, particularly the Article regarding the City Manager. However, the core functions of the elected city attorney are found in the City Charter.
Section 55 of the Annotated San Bernardino City Charter has the following annotations: “(Scott v. Common Council (1996) 44 Cal.App.4th 684, 686, 696, regarding Section 55 (d).) (City
Attorney Opinion No. 96-3; City Attorney Opinion No.89-11; City Attorney Opinion No. 87-59; City Attorney Opinion No. 87-36).” Scott v. Common Council can be found in the California Appellate Reports 4th, volume 44, page 684, which can be found in most California libraries and law libraries. The City Attorney Opinions are available from the City Attorney’s Office. I would accord them a weight equivalent to the California Attorney General’s Opinions. I think they would lend some persuasive authority to any legal brief. I have not seen any of them since I was a Deputy City Attorney for the City of San Bernardino.
As the election season goes on, I may provide some more insights into the legal structure of the San Bernardino City Attorney’s Office.
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