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: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

  • An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
  • The oaths taken by officer holders are invalid for some reason.
  • For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
  • The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
  • Misuse of the Uniform Commercial Code.
  • The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
  • A misconception about the term “common law.”
  • The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

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.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

The San Bernardino General Municipal Election: A History

By Michael Reiter, Attorney at Law

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.

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: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

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

By Michael Reiter, Attorney at Law

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

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

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

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

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

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

. . .

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

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

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

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

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

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

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

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

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. Suite 517
Redlands CA 92373-5235
T: (909) 296-6708

Creating a Tracked-Changes Version of An Ordinance, Resolution, or Charter Is Helpful to The City Council or Legislative Body

By Michael Reiter, Attorney at Law

In my series about the Charter of the City of San Bernardino, I have created tracked change versions of the Charter through the years.  I started by recreating a modern version of the 1905 Charter.   I created that by finding the Statutes of 1905, page 940.  This book is now in the public domain, having left copyright a long time ago.  Google has scanned the book.  If you look at the first page, the physical book scanned by Google was from the ” Library Leland Stanford Junior University.”  Though it is a cut-and-paste job to get from the OCR version provided by Google,  you have to go line-by-line and take out the funky annotations.

Then, as the Charter of the City of San Bernardino was updated, first (successfully) in 1908, I took the 1905 Charter, reviewed the changes added by charter amendment, and made a strike out version with additions and deletions.  Each charter amendment is in the Statutes of California for the respective year of passage, because the Legislature of the State of California had to approve the changes until the law changed, and now municipal charters must be sent to the Secretary of State, so they still appear in the Statutes of California.  You can find these at better law libraries; in particular, I can recommend the Victor Miceli Law Library, where I found the versions that I use in the series.  They also have an excellent legislative history collection.

Back to the subject at hand, here is an example of a strikeout or legislative version:

Section 133. Whenever the mayor and common council shall by ordinance or resolution, determine that the public interest or necessity demands the acquisition, construction, or completion of any municipal improvement, the cost of which would be too great to be paid out of the ordinary annual income and revenue of the city, they are hereby given the power and authority to call a special election and submit to the qualified voters of the city the proposition of incurring indebtedness to pay the cost of such improvement set forth in said ordinance or resolution. If said proposition be accepted by a two-thirds vote of the qualified electors voting at such election, the mayor and common council may issue and dispose of bonds of said city in evidence of said indebtedness.; provided that such indebtedness, together with the unpaid and outstanding bonded indebtedness actually existing at the time such proposition is submitted to said voters, shall not exceed three hundred and fifty thousand dollars.  But the city or municipal corporation of San Bernardino shall not incur any indebtedness for public improvements which shall in the aggregate exceed fifteen (15) per cent of the assessed value of all the real and personal property of said city or municipal corporation.  In all other respects not herein provided for, the procedure for calling and holding such elections and the issuance of bonds shall be governed by general law of the State of California applicable to cities of the fifth class.

A strikeout version allows the city council member (or in the case of a charter amendment, the voter to see what is being changed).   A strikeout version is particularly useful to a member of a legislative body if an entire chapter or title is being changed because it allows them to see a large amount of changes.  I recommend to any municipal attorney to consider creating a strike out version for their clients even if one is not specifically requested.

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.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517
Redlands CA 92373-5235
T: (909) 296-6708

City of San Bernardino’s 1919 Charter Amendments: Pay Raises

By Michael Reiter, Attorney at Law

After the people of San Bernardino adopted a charter in 1905 amended it in 1908, rejected amendments in 1911, and  amended it  in 1913, the Charter was amended again in 1919.     The amendments concerned salaries of local public officials.  I have drafted a legislative version with the 1913 version with the amendments adopted by the citizens of San Bernardino and approved by the California Legislature.

A special municipal election was held on March 19, 1919, and a majority of voters approved Proposed Charter Amendments One through Five.  Below is a strikeout version:

 

Sec. Section 24. The officers hereinafter named shall receive the salaries, following annual salaries: The mayor shall receive an annual salary of , $800; councilmen, each, $200; city clerk, $1000; city attorney, $600; chief of police, $1500.00; police judge, $1000, who shall be ex-officio treasurer. Salaries of all officers shall be , payable monthly.

Section 24A.  The councilmen shall each receive an annual salary of $300.00 payable monthly.

Section 24B.  The City Clerk shall receive an annual salary of $1500.00 payable monthly.

Section 24C.  The City Attorney shall receive an annual salary of $1500.00 payable monthly.

Section 24D.  The police Judge shall receive an annual salary of $1500.00 payable monthly.  The Police Judge shall be Ex-officio City Treasurer.

 

Section 24, salary of the Mayor, was approved again on June 4, 1974, March 6, 1974 and November 5, 2002.  Section 24-A was amended at least once, as the annual Council salary is now a princely $600 a year.  Section 24C was amended, and repealed.  Section 24D was also repealed.
Currently, these sections read:

Section 24. Salary of Mayor. The Office of Mayor shall be a full time
position and the incumbent shall not engage in any business, professional or
occupational activities which interfere with the discharge of the duties of such
office. Effective January 1, 2003, the annual salary of the Mayor shall be set at
fifty percent (50%) of the salary for a Superior Court Judge, County of San
Bernardino, State of California, as of July 1, 2002, and shall thereafter be adjusted
and implemented January 1 of each subsequent year at the same fifty percent
(50%) figure of the salary for said Superior Court Judge then in effect on said
January 1 date.
Section 24-A. Salary of Council. The Council Members shall each receive
an annual salary of six hundred dollars ($600.00), payable monthly.
Section 24-B. Salary of City Clerk. That the salary to be received by the
City Clerk shall be fixed by the Mayor and the Common Council.

 

Here is the preamble from Assembly Concurrent Resolution No. 23 “Approving certain amendments to the charter of the City of San Bernardino in the county of San Bernardino, State of California, voted for and ratified by the qualified electors of said city of San Bernardino, at a special municipal election held therein on the eighteenth day of March, 1919 [Filed with Secretary of Sate April 11, 1919.]  Found at Chapter 38 of the Statutes of California 1919, starting on page 1485:

PREAMBLE

            Be it known that,

WHEREAS, The city of San Bernardino, of the county of San Bernardino, State of California, has at all times mentioned herein been and now is a municipal corporation of said State of California, containing a population of more than three thousand five hundred (3,500) inhabitants, and has been ever since the eighth day of February, 1905, organized and existing and acting under a freeholders’ charter adopted under and by virtue of section eight, article eleven of the constitution of the State of California, which charter was duly ratified by the qualified electors of said city at an election held for that purpose on the sixth day of January, 1905, and approved by the legislature of the State of California, on the eighth day of February, 1905 (Stats. 1905, page 940, et seq.); and

WHEREAS, the mayor and common council of said city of San Bernardino, did by resolution designated as “Resolution No. 928” adopted by said mayor and common council on the twentieth day of January, 1919, and approved by the mayor of said city on the twentieth day of January, 1919, and pursuant to section eight of article eleven of the constitution of the State of California, duly propose to the qualified electors of said city of San Bernardino certain amendments, hereinafter set forth, to the charter of said city to be submitted to said qualified electors at a special municipal election to be held in said city on the eighteenth day of March, 1919; and,

WHEREAS, said resolution and said certain proposed amendments hereinafter set forth was published for one day in a daily newspaper  printed and published in said city and of general circulation therein, to wit: In the San Bernardino Daily Sun, said publication being on the twenty-second day of January, 1919; and

WHEREAS, copies of said proposals containing said proposals containing said proposed amendments were printed in convenient pamphlet form and until the date fixed for election hereinafter described and required by law, an advertisement was published in said San Bernardino Daily Sun, that such copies could be had upon application thereof, at the office of the city clerk;

WHEREAS, Thereafter the mayor and common council of said city did by an ordinance designated “Ordinance No.714” which was duly passed and adopted on the third day of February, 1919, and approved by the mayor of said city on February 4, 1919, call and order the holding of a special election in the city of San Bernardino on the eighteenth day of March, 1919, which said last-mentioned date was at least forty days and not more than sixty days after the completion of the publication of such resolution and proposed amendments to said charter for one day  in said San Bernardino Daily Sun, a daily newspaper of general circulation, printed, published and circulated in said city, and which said ordinance calling such special election specified and ordered and ordained that said proposed amendments be submitted to the qualified electors of said city at said special election for ratification or rejection, and designated the time of such election and established election precincts, and designated the polling places therein, and the election officers for each such precinct, and which said ordinance was published ten  times in said San Bernardino Daily Sun, the last date of such publication being on the twentieth day of February, 1919; and

WHEREAS, Said amendments were duly submitted to the qualified electors of said city of San Bernardino at said special election held on said eighteenth day of March, 1919, which said special election was held not less than forty days nor more than sixty days after the completion of the publication of such proposal for one day in said daily newspaper; and

WHEREAS, In and by said ordinance and said resolution so passed, approved and published as aforesaid, said proposed amendments were submitted to the qualified electors of said city at said special municipal election; and

WHEREAS, On the twentieth day of March, 1919, at a meeting of said mayor and common council of said city of San Bernardino duly convened in accordance with law and with the provisions of said charter of said city, said mayor and common council of said city of San Bernardino did duly and regularly  canvass the returns of said special municipal election so held on the eighteenth day of March, 1919, and did find thereupon that each said proposed amendments to said charter, hereinafter particularly set forth, was duly ratified by the electors voting thereon; and

WHEREAS, Said mayor and common council after canvassing said returns and at said meeting so held as aforesaid, after said canvass, did duly find and declare that said proposed amendments had been ratified and adopted by the majority of the electors voting thereon; and

WHEREAS, Said amendments so ratified by the electors of said city of San Bernardino at said special municipal election held on the said eighteenth day of March, 1919, are now submitted to the legislature of the State of California for approval or rejection, as a whole, without power of alteration or amendment, in accordance with the provision of section eight of article eleven of the constitution of the State of California; and

WHEREAS, No other proposed amendment to said charter had been submitted to the electors of said city of San Bernardino within two (2) years immediately prior to said 18th day of April, 1913 [sic, it was unchanged from the Preamble of the 1913 amendment];

Now, THEREFORE the undersigned, J.W. Catick, the mayor and chief executive of the city of San Bernardino, and J.H. Osborn, city clerk and clerk of the mayor and common council of said city, authenticating their signatures, with the official seal of said city, do hereby certify, that said amendment to said charter of said city so ratified by the majority of the electors, voting thereon at said special municipal election, held on the eighteenth day of March, 1919, as submitted to said electors in the words and figures as follows, and are and shall, if so approved by said legislature, be in the words and figures following, to wit:”

The Charter of the City of San Bernardino, as amended in 1919, was not amended again until 1921.  I find it amusing that even in 1919, the Preamble was largely a cut-and-paste 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: 300 E. State St. Suite 517
      Redlands, CA 92373-
T: (909) 296-6708

The San Bernardino City Clerks Since the 1905 Charter

By Michael Reiter, Attorney at Law

There have been just seven San Bernardino City Clerks since 1903, when Harry Allison became City Clerk for the pre-Charter City of San Bernardino.  The original 1905 Charter of the City of San Bernardino kept the existing City Clerk until the 1907 election.  Harry Allison won that first City Clerk’s election, and served until 1911, when S.G. Batchelor became City Clerk.  John H. Osborne became City Clerk in the next election in 1915, and served as City Clerk until at least 1950.  In 1951, Jack Felton was elected City Clerk.  He served at least until 1970.  In 1971, Deputy City Clerk Lucille Goforth was elected as City Clerk.  She served until the late 1970s.  In 1979, Shauna Clark was elected City Clerk.   Rachel Mendoza Clark was elected City Clerk in 1991, and again in 1995, 1999, 2003, and 2007.  She is now retiring, and one of the following will be elected City Clerk, only the eighth City Clerk since 1903: William Valle, Amelia Sanchez-Lopez, Gigi Hanna, Esther Jimenez, or Peggi Hazlett.  I would expect any of the candidates, if they win, to be in office for four or five terms, so it is important that voters examine the candidates and their positions.  Should the next City Clerk serve four terms, the time period between 1903 and 2028 (125 years), there will have been only eight City Clerks, an average of only one City Clerk for every 15.625 years.

Voters decided by an overwhelming percentage that they wanted to vote for City Clerk.  Make sure to make an informed decision on the candidate, as voters have only changed City Clerks six times since 1903.

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 : 3o0 E. State St.#517
                   Redlands, CA 92373
Telephone: (909) 296-6708

PSA: San Bernardino City Election Forum For City Attorney and City Clerk Candidates September 27, 2011 7:00 p.m. 300 North D Street, San Bernardino

By Michael Reiter, Attorney at Law

There will be another candidate forum on September 27, 2011, sponsored by the San Bernardino Area Chamber of Commerce, for the candidates for San Bernardino City Attorney, incumbent City Attorney James F. “Jim” Penman and former Public Defender and County Supervisor David L. McKenna at 7 p.m., in the Council Chambers, 300 North D Street, San Bernardino, CA 92418.  At 8 p.m., there will be a forum for the City Clerk candidates, Gigi Hanna, Peggi Hazlett, William Valle, Amelia Sanchez-Lopez and Esther Jimenez.

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: 300 E. State St. Suite 517

Redlands CA 92373-5235
Telephone: (909) 708-6055

Possible Legal Issues of Joint Campaign Signs in the San Bernardino City Clerk and City Attorney November 2011 Elections

By Michael Reiter, Attorney at Law

This weekend, joint James F. Penman for City Attorney and Amelia Sanchez-Lopez for City Clerk signs popped up in San Bernardino.  Are there any issues in having joint signs?  I cannot remember a specific race that I can point to where there have been joint campaign signs, though a web search shows that they exist in other jurisdictions.  In local, non-partisan races, I can see such a move to be beneficial when a group of candidates want to run together as a reform slate, such as in a recall election, or a city council or school board election where a majority of the council or board can change in one election.

As far as legal issues, the ones that immediately pop into mind are sign code issues (being jointly responsible for the placement of your sign if it violates a sign ordinance (such as being in the public right-of-way).  Presumably, should that happen, both candidates could be held responsible for violating the code.   The other issue could be a campaign disclosure of in-kind contributions.  Say, for example, one well-known, well-financed candidate is paying for the sign, and the other, less-experienced, less well-funded candidate is piggybacking on the sign of the other.  There would need to be campaign disclosures of the in-kind contributions.

The only other issue that I can think of has created a joint sign that does not have the permission of the other candidate.  An example that I have seen online is when someone had a joint sign with a presidential candidate wherein the presidential campaign did not give permission for the sign.

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 : 300 E. State St. Suite 517

Redlands CA 92373-5235
Telephone: (909) 708-6055

City of Riverside’s City Clerk Online Public Records

By Michael Reiter, Attorney at Law.
Finding a municipal record can be difficult even for in-house municipal lawyers. When I was Assistant City Attorney for the City of Redlands and a Deputy City Attorney for the City of San Bernardino, I would have to go to, email or call the City Clerk’s Office for someone to manually pull the needed document.

Luckily, progressive cities are putting more and more documents online.  This is a good practice because it allows both staff and the public to pull up public records without having to waste staff time retrieving the record.

The City of Riverside has such a system, which I stumbled upon looking for a Government Claim form from the City.  As an aside, I called the City’s 311 call center and they said the Government Claim Form is not available online.  They agreed to email me one.

The City of Riverside record database is available here.   The available folders are: Administration, Agendas, Boards and Commissions, Chaindex, City Council/Agency Reports, Contracts/Agreements, Covenants and Agreements, Deed Chaindex, Deed Outs, Deeds, Discussion Session, Elections, Fiscal, General Plan 2025 Program, Insurance, Minutes, Miscellaneous, Ordinances, Purchase Orders, Resolutions, Upcoming Public Hearings.

The Agendas go back to 1997.  The oldest deed that I could find was from 1955.  The earliest Agreement is from 1960.  Minutes date back to incorporation in 1883, Ordinances to 1907 (dating to the new series Ordinance 1).

There are many fascinating documents, including the Incorporation document from 1883.    Of course, the City of Riverside was then in San Bernardino County, so the Clerk of the Board of Supervisors was William F. Holcomb, first elected to the position in 1882.  Both his grandson and great-grandson would become mayors of San Bernardino.

So, you can’t get the Government Claim form online (I would suggest that someone who needs a claim form call 311, the City emailed it to me), but you can get a whole host of other documents that have a variety of uses.

[Update September 29, 2011]

San Bernardino also has such a system, which I stumbled upon while looking at Gigi Hanna’s website.

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