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
|1/2008 to 3/31/2008
|4/2008 to 6/30/2008
|7/2008 to 9/30/2008
||1 month behind schedule
|10/2008 to 12/31/2008
||8 months behind schedule
|1/2009 to 3/31/2009
||5 months behind schedule
|4/2009 to 6/30/2009
||2 months behind schedule
|7/2009 to 9/30/2009
|10/2009 to 12/31/2009
|1/2010 to 3/31/2010
||1 week ahead of schedule
|4/2010 to 6/30/2010
||7 months behind schedule
|7/2010 to 9/30/2010
||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.
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