February | 2012 | Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California

The certified official results in the General Municipal Election for City of San Bernardino City Clerk are that Gigi Hanna has won by three votes:

From the San Bernardino Registrar of Voters:

Last Updated: February 13, 2012 2:31 PM

Registration & Turnout

71,881 Voters

	Vote Count	Percent
Precinct Turnout	12,205	16.98%
Total	12,205	16.98%

City Clerk, City of San Bernardino

170/170 100.00%

	Vote Count	Percent
GEORGEANN ”GIGI” HANNA	6,073	50.01%
AMELIA SANCHEZ-LOPEZ	6,070	49.99%
Total	12,143	100.00%

Compared to the semi-official results below, there were 13 new ballots added to turnout, and Gigi Hanna gained 8 new votes, and Amelia Sanchez Lopez gained 6 new votes. From these numbers, there were 62 ballots that had problems, either under votes, over votes, write-ins, or spoiled ballots. That is the same number as on the semi-official results.

Here are the previous numbers:

Last Updated: February 7, 2012 9:20 PM

Registration & Turnout

71,881 Voters

	Vote Count	Percent
Precinct Turnout	12,192	16.96%
Total	12,192	16.96%

City Clerk, City of San Bernardino

170/170 100.00%

	Vote Count	Percent
GEORGEANN ”GIGI” HANNA	6,066	50.01%
AMELIA SANCHEZ-LOPEZ	6,064	49.99%
Total	12,130	100.00%

There is also an automatic manual recount established by Election Code section 15360. By law, a random sample of ballots from every election must be recounted manually to verify the computer count. A minimum of one percent of all votes cast is included in the process. This must occur before the election is certified. The automatic manual recount is open to the public. A court explained it like this:

“1 percent manual tally” is a procedure used in California to test whether there are any discrepancies between the electronic record generated by a voting machine and what is essentially a manual audit of that electronic record. Essentially, after each election, the “official conducting the election” is to conduct a “public manual tally of the ballots tabulated” by any voting machines “cast in 1 percent of the precincts chosen at random by the elections official.” (§ 15360.) Nguyen v. Nguyen (2008) 158 Cal.App.4th 1636, 1643.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under City Clerk, City of San Bernardino, Elections, Municipal Law, San Bernardino City Clerk Tagged with Amelia Sanchez-Lopez, Califonia, City Clerk, Georgeann "Gigi" Hanna, Recount, San Bernardino City Clerk, San Bernardino General Municipal Election

The Recount Process: What happens during a recount?

February 13, 2012 Leave a comment

California Elections Code section 15620 et seq. governs recounts requested by voters. Any voter may file a request for a recount pursuant to Elections Code section 15620.

As discussed before, the recount is done publicly. California Elections Code section 15629. The voter requesting the recount should request all ballots and other relevant material (which in the case of the San Bernardino City Clerk’s election, should include the voter envelopes that were not signed and the ballots not counted, in case there is a court challenge about whether the ballots were validly voted under California law). Elections Code section 15630 says:

All ballots, whether voted or not, and any other relevant material, may be examined as part of any recount if the voter filing the declaration requesting the recount so requests. No examination of any ballot shall include touching or handling the ballot without the express consent of the elections official or the election officer supervising the special recount board. No ballot may be touched or handled during the examination unless the elections official or the elections officer supervising the special recount is present to observe the examination. Except as provided in this section no ballot shall be touched or handled by any person during the recount unless that person is the elections official, a person acting at the direction of the elections official, a member of the special recount board, or by order of the superior court.

The observers can challenge a ballot using the procedure found in Elections Code section 15631:

On recount, ballots may be challenged for incompleteness, ambiguity, or other defects, in accordance with the following procedure:

(a) The person challenging the ballot shall state the reason for the challenge.

(b) The official counting the ballot shall count it as he or she believes proper and then set it aside with a notation as to how it was counted.

(c) The elections official shall, before the recount is completed, determine whether the challenge is to be allowed. The decision of the elections official is final.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

The San Bernardino City Clerk’s Election Results and The Recount Process in San Bernardino County

February 8, 2012 Leave a comment

The semi-official results in yesterday’s General Municipal Election for City of San Bernardino City Clerk are that Gigi Hanna won by two votes:

Last Updated: February 7, 2012 9:20 PM

Registration & Turnout

71,881 Voters

	Vote Count	Percent
Precinct Turnout	12,192	16.96%
Total	12,192	16.96%

City Clerk, City of San Bernardino

170/170 100.00%

	Vote Count	Percent
GEORGEANN ”GIGI” HANNA	6,066	50.01%
AMELIA SANCHEZ-LOPEZ	6,064	49.99%
Total	12,130	100.00%

Close elections sometimes involve recounts. It can involve a closer look to see if ballots were correctly counted by machines and if any votes counted were illegal or improperly voted.

California Elections Code section 15620 et seq. governs recounts requested by voters. Any voter may file a request for a recount pursuant to Elections Code section 15620. The request must be filed no later than five days after the completion of the official canvass. The completion of the canvass occurs when the elections official signs the Certification of Election Results. Elections Code section 15620.

The request must be in writing, specify the contest to be recounted, and state on behalf of which candidate (in this case), slate of electors, or position on a measure it is filed. Elections Code section 15620. The request may specify the order in which precincts shall be recounted, it may specify the method of counting to be used, and any other relevant material to be examined. Elections Code sections 15622, 15627, 15630.

If it is not a statewide measure, as this is not, the request needs to be filed with the county election official responsible for conducting the election. However, the request needs to be filed with the City Clerk if it is a city election or if the city has not consolidated with the County. Elections Code section 15620.

The election official will post a notice stating the date and place of the recount at least one day before the recount, and the candidates will be notified by overnight mail or personally. Elections Code section 15628.

A recount is open to the public, and must start no later than seven days following the receipt of the request and shall be continued daily, except for Saturdays, Sundays and Holidays, for no less than six hours a day until completed. Elections Code sections 15626, 15629. A manual recount must be conducted under the supervision of the election official by recount boards, (each consisting of four San Bernardino County voters), appointed by the election official. Elections Code section 15625. Every vote in every precinct must be recounted, or the results are null and void, and if a different candidate wins, the results of the official canvass will be changed. Elections Code section 15632. A copy of the results shall be posted conspicuously in the office of the election official. Elections Code section 15633.

There is a cost associated with a recount, and the amount for this San Bernardino City Clerk General Municipal Election recount, should it occur, will depend on a variety of factors. The election official determines the amount of the deposit necessary to cover the costs of the recount for each day. The voter filling the request must deposit, before the start of the recount and at the beginning of each day , the amounts to cover the cost of each day. If the results are reversed, the deposit must be returned. Elections Code section 15624.

How much will the recount be, if one is requested? San Bernardino County does not give the typical fees, but some other California Counties do (information was obtained from the Internet and is not necessarily reliable or up-to-date:

Santa Cruz:

COST BREAKDOWN FOR MANUAL TALLY:

1 Board $240 – Supervisor Pay $325 – Cost per day $565

2 Boards $480 – Supervisor Pay $500 – Cost per day $980

3 Boards $720 – Supervisor Pay $675 – Cost per day $1395

Sutter:

COST AND PAYMENT
Manual Tally Recount Fees
Number of Boards Fee Per Day
1 $969.00
2 $1,674.00
3 $2,379.00

Other Costs
Item Fee
Legal Notices Actual Cost
Security Actual Cost
Computer Support $106.00/hr
Materials Actual Cost
Copy Charges Per Code/Resolution
Postage Actual Cost
County Counsel $112.00/hr
Accounting $56.57/hr

“1 percent manual tally” is a procedure used in California to test whether there are any discrepancies between the electronic record generated by a voting machine and what is essentially a manual audit of that electronic record. Essentially, after each election, the “official conducting the election” is to conduct a “public manual tally of the ballots tabulated” by any voting machines “cast in 1 percent of the precincts chosen at random by the elections official.” (§ 15360.) Nguyen v. Nguyen (2008) 158 Cal.App.4th 1636, 1643.

There are court challenges available after the recount, but since the recount in this case is mere speculation, they will be discussed at a later time.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

The San Bernardino General Municipal Election: A History

February 7, 2012 Leave a comment

Here is the election post about today’s General Municipal Election over at sbdpolitics.com. This post is about the history of the San Bernardino Charter regarding primary and general elections.

The Charter of the City of San Bernardino created San Bernardino’s Primary Municipal and General Municipal Elections.

A primary election shall be held in said City on the first Tuesday after the first Monday in March of each odd numbered year, for the nomination of candidates to be elected at the ensuing general election, and a general election shall be held in said City on the first Tuesday in May of each odd numbered year, for the election of City officers. Beginning with the primary election in 1995, and thereafter a primary election shall be held in said City on the first Tuesday after the first Monday in November in each odd numbered year for the nomination of candidates to be elected at the ensuing general election, and a general election shall be held in said City on the first Tuesday in February of the following even numbered year for the election of City Officers. Said election shall be conducted in the manner provided for by general law; provided, however, that the Mayor and Common Council shall have power, by ordinance, to provide for the manner of holding such election. Charter of the City of San Bernardino section 10.

However, if someone wins a majority of votes in the Primary Municipal Election, then there is no need for a General Municipal Election:

Any candidate for any City office who at a primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidates seek nomination, shall be elected to such office. Where two or more candidates are to be elected to a given office and a greater number of candidates receive a majority than the number to be elected, those candidates shall be elected who secure the highest votes of those receiving such majority, and equal in number to the number to be elected. Any officer elected shall hold office until his or her successor is elected and qualifies. Charter of the City of San Bernardino section 10A.

That is why candidates were elected at the Primary Municipal Election on November 8, 2011. The original section 10 of the 1905 Charter read:

The provisions of all general laws governing elections for state and county officers, not inconsistent with the provisions of this charter, are hereby adopted as the laws governing city elections for city officers, and the provisions of all laws governing general or special elections in municipalities applicable to all municipalities of the state, or to municipalities of the fifth class, and not inconsistent with the provisions of this charter, are hereby adopted as the laws governing all general or special elections held within the city, and in all elections the mayor and common council and the city clerk respectively shall exercise the powers and perform the duties conferred or imposed by law on boards of supervisors and county clerks concerning elections.

Even though there was no reference to a primary nominating election, there was one in existing state law, and there were primary elections before the 1935 adoption of the new section 10. I have information from one such election in which the candidates actually ran on a partisan ticket to be nominated in the general election.

This section was repealed in 1921 by the voters of San Bernardino. The a version of the current section 10 was adopted by the voters on April 8, 1935:

Section 10: A primary election shall be held in said City on the third Monday in March of each odd numbered year, for the nomination of candidates to be elected at the ensuing general election, and a general election shall be held in said City on the second Monday in April of each odd numbered year, for the election of City officers. Said election shall be conducted in the manner provided for by general law; provided, however, that the Mayor and Common Council shall have power, by Ordinance, to provide for the manner of holding such election.

Charter section 10 was next amended in 1949 to read:

Section 10. A primary election shall be held in said City on the Third Tuesday in March of each odd numbered year, for the nomination of candidates to be elected at the ensuing general election, and a general election shall be held in said City on the Second Tuesday in April of each odd numbered year, for the Election of City Officers. Said election shall be conducted in the manner provided for by general law; provided, however, that the Mayor and Common Council shall have power, by ordinance, to provide for the manner of holding such election.

The next Charter election held on March 20, 1951 added section 10A, though not in the modern form:

Any candidate for a judicial, school, or any City office who at a primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidate seeks nomination, shall be elected to such office. Where two or more candidates are to be elected to a given office and a greater number of candidates receive a majority than the number to be elected, those candidates shall be elected who secure the highest votes of those receiving such majority, and equal in number to the number to be elected.

In 1966, section 10 was amended again:

Section 10. A primary election shall be held in said City on the first Tuesday in February of each odd numbered year, for the nomination of candidates to be elected at the ensuing general election, and a general election shall be held in said City on the Second Tuesday in April of each odd numbered year, for the Election of City Officers. Said election shall be conducted in the manner provided for by general law; provided, however, that the Mayor and Common Council shall have power, by ordinance, to provide for the manner of holding such election.

In the event any amendment to the Charter involving an election is ratified by the electorate and its approval by the Legislature is not reasonably anticipated to occur before the ninety (90) day period preceding such election, the Mayor and Common Council by ordinance may authorize the necessary election process and procedures to commence, change and establish the boundaries of existing and future wards and authorize related acts in preparation for the election; and such ordinances or acts will be effective and operate retrospectively, cured, ratified and validated, provided the approval of such amendment by the Legislature occurs before said election.

Section 10 was amended on June 4, 1974, and I believe it amended the section to delete the second paragraph added in 1966, and change the primary to March and the general election to May:

Section 10. Primary and General Election. A Primary election shall be held in said City on the first Tuesday after the first Monday in March of each odd numbered year for the nomination of candidates to be elected at the ensuing general election and a general election shall be held in said City on the first Tuesday in May of each odd numbered year, for the election of City Officers. Said election shall be conducted in the manner provided for by general law; provided, however, that the Mayor and Common Council shall have power by ordinance to provide for the manner of holding such election.

Section 10 was amended for on June 2, 1992 to read (which was readopted by voters in November 2004):

Section 10. Primary and General Election. A Primary election shall be held in said City on the first Tuesday after the first Monday in March of each odd numbered year for the nomination of candidates to be elected at the ensuing general election and a general election shall be held in said City on the first Tuesday in May of each odd numbered year, for the election of City Officers. Beginning with the primary election in 1995, and thereafter, a primary election shall be held in said City on the first Tuesday after the first Monday in November in each odd numbered year for the nomination of candidates to be elected at the ensuing general election, and a general election shall be held in said City on the first Tuesday in February of the following even numbered year for the election of City Officers. Said election shall be conducted in the manner provided for by general law; provided, however, that the Mayor and Common Council shall have power by ordinance to provide for the manner of holding such election.

Section 10A was also amended on June 2, 1992:

Any candidate for a judicial, school or any City office who at a primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidate seeks nomination, shall be elected to such office. Where two or more candidates are to be elected to a given office and a greater number of candidates receive a majority than the number to be elected, those candidates shall be elected who secure the highest votes of those receiving such majority, and equal in number to the number to be elected. Any officer elected shall hold office until his successor is elected and qualifies.

Section 10A was changed when the new Charter was adopted in 2004 to clean up the language regarding judicial and school election, and to put in gender neutral language in the last sentence. However, the second line about “Where two or more candidates are to be elected to a given office and a greater number of candidates receive a majority” no longer makes sense because no City office allows more than one office holder. It referred to the school board election, but the amendment deleted a reference to that language. It could be useful if a “pick two” or “pick four” office is added to the Charter, but as it is currently written, it is anachronistic.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under Charter, City Clerk, City of San Bernardino, Elections, Municipal Law, San Bernardino, San Bernardino City Charter Tagged with Charter of the City of San Bernardino

Codification of the San Bernardino Municipal Code: A 2012 Update

February 6, 2012 Leave a comment

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.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

W: http://michaelreiterlaw.com

Filed under California Public Records Act, City Attorney, City Clerk, City of San Bernardino, Municipal Code, Municipal Law, Public Contracting, San Bernardino, San Bernardino City Attorney's Office, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code Tagged with Chas Kelley, codification, James F. "Jim" Penman, Michael Reiter Attorney at Law, Patrick J. Morris, Rachel Clark, Robert Jenkins, San Bernardino City Clerk, San Bernardino Municipal Code, Wendy McCammack

City Attorneys of San Bernardino County Cities and Towns

February 1, 2012 Leave a comment