Recount Procedures If Necessary In the Redlands City Council Election November 2016

People are asking about the recount procedure in the Redlands City Council Election.

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(c).

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(a).  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. The choice of method is either a manual recount (as defined in section 15627), or  by means of the voting system used originally. Elections Code sections 15627(a).

When I observed the recount requested in the 2014 31st Congressional District, certain precincts (186 out of 477) thought to have anomalies were requested to be reviewed first in accordance with Elections Code section 15622.  When insufficient results were found, the recount was suspended.

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, unless the City canvasses their own returns, which is not the case here.  Elections Code section 15620(a).

“Any time during the conduct of a recount and for 24 hours thereafter, any other voter may request the recount of any precincts in an election for the same office, slate of presidential electors, or measure not recounted as a result of the original request.”  Elections Code section 15623.

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.

While the recount is public (section 15629), No ballot can be touched “without the express consent of the elections official or the election officer supervising the special recount board.” Elections Code section 15630.

The regulations provide further details about observers and spokespeople:

“(a) Any person may observe the recount proceedings, subject to space limitations of the recount location selected by the elections official pursuant to section 20816.
(b) Upon request by the elections official, each interested party shall appoint one of his or her representatives to serve as a spokesperson authorized to make decisions with respect to the recount on behalf of the interested party, or the interested party may serve as his or her own spokesperson. When accompanied by an elections official or his or her designee, the spokesperson shall have access to all areas where ballots are recounted by hand or tabulated by machine.
(c) Questions other than ballot challenges shall be routed through the spokesperson, who shall then direct the question to the elections official or his or her designee. Official discussions with any interested party concerning resolution of questions shall include each interested party or his or her spokesperson.
(d) The elections official may require any requestor, interested party, representative, or observer of the recount proceedings to log in and receive an identification badge before entering the recount location. If required, identification badges shall be worn at all times and returned to the elections official at the end of the day.
(e) Requestors, interested parties, representatives, and observers shall not interfere in any way with the conduct of the recount, touch any voting system components, ballots, tally sheets or other special recount board materials, sit at the official recount worktables, place any material on the official recount worktables, talk to members of the special recount boards or supervisors while they are processing ballots or other recount materials or assist in recount procedures.
(f) The elections official may deny entry to the recount location to any person who fails to comply with the requirements of this section.” 2 CCR section 20820.

The procedure for challenging a ballot is that the person challenging the ballot states a reason, the person 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” and 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.” Elections Code section 15631.

The Code of Regulations provides further detail:

“(a) A challenged ballot shall be set aside with a notation indicating the precinct number, the method by which it was originally counted for the official canvass, e.g., direct recording electronic voting system, scanner or hand count, the challenge number assigned to the ballot, the reason for the challenge, and the identity of the person making the challenge.
(1) A ballot that was counted in the official canvass, including a counted vote by mail or provisional ballot, may be challenged only on grounds of disqualifying distinguishing marks or some other grounds visible on the face of the ballot so that the ballot can be isolated and removed from the count if the elections official determines that the ballot was not properly cast.
(2) A voted ballot that was not counted in the official canvass, including a rejected unopened vote by mail or provisional ballot, may be challenged and added to the count if the elections official determines that the ballot was properly cast.
(b) Resolution of challenged ballots shall take place in a segregated area within the recount location, separate from that being used to perform the recount, as determined by the elections official, to avoid confusion and mixing of ballots.
(c) Challenges shall be resolved each day after all special recount boards complete their work, or more often if necessary, as determined by the elections official, but in any event before the conclusion of all recount proceedings. The determination of the elections official on a challenge shall be final. The elections official shall maintain a record of each challenge and the determination on each challenge.” 2 CCR section 20823.

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.

Manual recounts have this procedure:

“(a) One of the four special recount board members shall read the ballot and call out the vote cast for the contest subject to recount on that ballot; one shall observe that the correct call was made, and two members shall each separately and independently record the votes as called out.
(b) Prior to beginning the actual manual recount, the elections official shall instruct all members of the special recount boards, requestor, interested parties, representatives and observers on the procedures to be followed for the recount and shall provide them with copies of these recount regulations, any local documentation concerning recount procedure, and documentation on how to interpret and read the votes cast on the ballot, consistent with federal and state law and the State Uniform Vote Count Standards. The instructions and documentation shall include a statement that in the event of a challenge, the determination of the elections official shall be final.
(c) Vote by mail and early-voted ballots cast from a precinct subject to recount shall be tabulated separately from ballots cast in a polling place on Election Day.” 2 CCR section 20831.
Since the Redlands Municipal Election was a “vote for multiple” election, if a manual recount is requested, the following procedure applies:
“Manual recount tabulation on a voting system in a “Vote for Multiple” contest is subject to the following requirements:

(a) Prior to counting the ballots for the contest subject to recount, and in the clear view of the requestor, spokespersons and observers, all ballots for the precinct shall be separated into stacks that do and do not contain the contest. Those that contain the contest shall be sorted as follows:
(1) Ballots that were not voted for the contest (under-voted);
(2) Ballots that were over-voted for the contest;
(3) Ballots indicating a vote for the first candidate listed on the ballot for the contest; and
(4) Ballots that do not indicate a vote for the first candidate listed on the ballot for the contest.
(b) Starting with the voted ballots, one member of the special recount board shall state the candidate or position for which the vote was cast making sure the requestor, interested parties and their representatives can observe the contest subject to recount.
(c) After the vote is stated and counted, the counted ballot shall be placed on the table, with the counted ballots placed in stacks of 10 (or 25).
(d) Two members of the special recount board shall record the votes stated, marking hashes in succession on their individual tally sheets. Each of these two board members shall announce when he or she has counted 10 (or 25) votes. If both members call out 10 (or 25) counted votes at the same time, the tally shall continue forward for the next 10 (or 25) ballots. If both recorders do not reach 10 (or 25) additional votes on the same ballot, then the count for the last interval of 10 (or 25) ballots shall be stricken from their tally sheets and those ballots recounted.
(e) A requestor or an authorized spokesperson may request to inspect any ballot. Tallying shall be halted while the ballot is presented to the requestor or spokesperson for closer inspection. At no time may any requestor or spokesperson touch or come into physical contact with any of the ballots. Tallying will resume once the inspection is completed, which the requestor or spokesperson shall complete in a reasonable amount of time.
(f) Once all the votes for the first candidate have been recorded, the valid voted ballots shall be resorted into two stacks:
(1) Ballots that were voted for the second candidate in the contest; and
(2) Ballots that do not indicate a vote for the second candidate in the contest.
The ballots voted for the second candidate shall be calculated in accordance with (b) through (e) above. Tallying shall continue in this manner, until the votes for each candidate in the contest have been recounted and tallied.
(g) After all voted ballots have been counted and tallied, the two special recount board members who have been recording the votes will each independently calculate the total votes for each candidate or position on their tally sheets. When both have completed totaling, they will each announce their totals one candidate or vote position at a time. If both announce the identical vote total for each candidate or position in the recounted contest, the recount of that precinct shall be deemed complete and the results reported to the elections official. If the special recount board members announce different vote totals for any candidate or vote position in the recounted contest, the recount tallies recorded and announced will be examined. If the difference can be explained by the special recount board or supervisor, or by the elections official or his or her designee, it shall be corrected on the tally sheet. A written explanation shall be made on an attachment to the tally sheet. In the event of an unexplained discrepancy, the results for that precinct shall be discarded and the recount of that precinct will start over.” 2 CCR section 20833.

There is a cost associated with a recount, and the amount for this Redlands 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 the Lesli Gooch recount (which was a manual recount) was $6,300 for one day which changed one vote: http://www.latimes.com/local/political/la-me-pc-recount-halted-20140626-story.html

A City Council election in Victorville in 2014 with an 12 vote discrepancy would have cost $4,400 a day.

The estimated cost of a recount in the 8th Congressional District in 2012 was “$11,335 for the first day’s recount. [The requestor] will pay roughly $6,000 for each day after that.”

A 23 vote differential in a Hesperia Unified School District election had an estimated $8,000 per day recount cost. http://www.hesperiastar.com/article/20071119/NEWS/311199993

There is also an automatic manual recount (countywide) 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 auditof 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.

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

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

I’m not sure why this was not posted at the time, but for historical interest, here is a post that supposed to appear in 2013.

By Michael Reiter, Attorney at Law

San Bernardino Residents For Responsible Government, the political action committee behind the proposed recall,  contacted me today regarding the last post on the Notices of Intention to Circulate Recall Petitions in the Proposed San Bernardino Recall for November 5, 2013.

The Petitions were drafted by Michael L. Allan, a Pasadena attorney.  The decision to use process servers was also his decision.  The rest of the petitions will be released to the public on Monday, as listed on their website.  They say they have not filed the petitions against Wendy McCammack and Rikke Van Johnson yet. San Bernardino Residents For Responsible Government says they are giving the office holders 14 days to respond to the petitions.

Per the Charter of the City of San Bernardino, Section 122:

Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed.

The 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

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

By Michael Reiter, Attorney at Law

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

City Attorney James F. Penman

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

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

Council Member Virginia Marquez, First Ward

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

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

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

Council Member Fred Shorret:

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

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

Mayor Patrick J. Morris:

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

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

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

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

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

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

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

The Results of the San Bernardino County California Election November 6, 2012

Over on sbdpolitics.com, the results, as of about 6:05 a.m. on November 7, 2012, of the election as it pertains to San Bernardino County, with a focus on the City of San Bernardino and surrounding cities.
Here is the abbreviated version:  Gloria Negrete McLeod over Joe Baca in the 35th; Gary Miller over Bob Dutton in the 31st; Cheryl R. Brown over Joe Baca Jr. in Assembly District 47; Gloria Macias Harrison, John Longville, Nick Zumbos, and Kathleen Henry for San Bernardino Community College Board of Trustees; James Ramos over Neil Derry in the Third Supervisorial District, Robert Lovingood over Rick Roelle in the First Supervisorial District; City of Highland Council unchanged, Pete Aguilar reelected in Redlands,  Measure Q beats Measure R, and Measure N passes handily.

Did the San Bernardino Unified School District Violate Education Code Section 7054 Regarding Advocacy For Measure N on The November 6, 2012 Ballot?

By Michael Reiter, Attorney at Law

Measure N is the San Bernardino City Unified School District’s bond measure is to sell $250,000,000 (250 million dollars or a quarter billion dollars) in aggregate principal of  bonds with a maturity not to exceed twenty-five years. The ballot statement and resolution do not give the total cost to the bond issue including principal and interest.  The District’s estimate is that it will cost property owners $34 per year for each $100,000 of assessed value to pay the principal and interest on the bonds (which is in addition to any existing bonds).  It was placed on the ballot by the Board of Education on August 7, 2012 by a six to one vote.  The members voting for were Barbara Flores, Mike Gallo, Margaret Hill, Bobbie Perong, Lynda Savage, Judi Penman.  Danny Tillman voted no.  The measure requires a 55 percent “yes” vote to pass per Proposition 39 (2000) and Education Code section 15264.  In connection with Measure N, the San Bernardino Unified School District has sent mass mailings, including this piece:

California Education Code section 7054 reads, as of today:

(a) No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.
(b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:
(1) The informational activities are otherwise authorized by the Constitution or laws of this state.
(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.
(c) A violation of this section shall be a misdemeanor or felony punishable by imprisonment in a county jail not exceeding one year or by a fine not exceeding one thousand dollars ($1,000), or by both, or imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, or two or three years.
Therefore, a school district cannot use funds for the purpose of urging the support or defeat of any ballot measure or candidate.  California Education Code section 7054(a).  However, a limitation to California Education Code seciton 7054(a) is that a school district may expend public resources to provide information to the public about the possible effects of any bond issue if two conditions are met.  The informational activities are otherwise allowed by law, and the “information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.”  California Education Code section 7054(b).  The violation of this section is a wobbler, punishable as a misdemeanor or felony. California Education Code section 7054(b).
In the resolution of August 7, 2012, the San Bernardino Unified School District Board of Directors made this finding:
WHEREAS, the District needs to install lighting, replace and fix fences and update security
alarms to keep students safe during and after school and to protect our schools from gang
members who break into schools, vandalize and steal equipment;  . . .
The front of the mailer states “From the Desk of School District Police Chief Joseph Paulino”

The letter says

Dear Neighbor:

As School District Police Chief, my job is to keep our students and school sites safe.
I also seek to protect our schools from intruders who break into schools, vandalize, steal school equipment and tag walls with graffiti. Unfortunately, many of our schools have outdated security alarms, inadequate fences and limited lighting.
Measure N is on your local ballot.  Among the priorities included in Measure N are the following safety and security upgrades to San Bernardino and Highland schools:
  • Maintain safe, clean clasrooms
  • Repair/replace leaky roofs
  • Remove asbestos and other hazardous materials
  • Repair/replace fire alarms, security and electrical systems
  • Replace old playground equipment with new, safer equipment

Remember to vote on Measure N.

Sincerely,
/s/
Chief Joseph Paulino
San Bernardino School District
Police Department
The Measure does not give an actual project list (meaning, x amount is going to do x at Cajon High School on x date).   However, there is a more generic project list, and this is the relevant section:
School Safety and Energy Efficiency School Projects
Goal and Purpose: The District must protect its schools from gang members who break
into schools, vandalize and steal equipment and tag walls with graffiti. Unless the District
replaces outdated security alarms, inadequate fences and limited safety lighting, it can’t
keep them out. To keep students safe during and after school, projects such as proper
lighting, fences and security alarms are needed:
Student Safety
• Repair and replace security and electrical systems, such as security lighting, fencing,
gates and classroom door locks.
• Upgrade fire alarm systems including fire safety equipment and sprinklers to make
students safe in the event of an emergency.
• Upgrade schools to meet handicap accessibility requirements.
• Remove hazardous materials like asbestos and lead paint from older school sites.
• Increase after-school program space to reduce juvenile violence.
The headline’s question is whether the District’s statement has violated California Education Code section 7055 regarding advocacy for Measure N.  The California Supreme Court decision in Stanson v. Mott (1976) 17 Cal.3d 206 is important to consider in such cases. The Court ruled:
On June 4, 1974, California voters approved a $250 million bond issue to provide funds for the future acquisition of park land and recreational and historical facilities by state and municipal authorities. One day before the election, plaintiff Sam Stanson filed the present taxpayer suit, alleging that defendant William Penn Mott, Jr., director of the California Department of Parks and Recreation (department), had authorized the department to expend more than $5,000 of public funds to promote the passage of the bond issue. Asserting the illegality of such use of public funds, plaintiff sought a judgment that would require Mott personally to repay the funds to the state treasury and any other appropriate relief.

. . .

As we explain, past decisions in both California and our sister states establish that, at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign; in the present case, no legislative provision accorded the Department of Parks and Recreation such authorization. Although the department did possess statutory authority to disseminate ‘information’ to the public relating to the bond election, the department, in fulfilling this informational role, was obligated to provide a fair presentation of the relevant facts. Since plaintiff specifically alleged that public funds were expended for ‘promotional,’ rather then ‘informational,’ purposes, his complaint stated a valid cause of action, and the trial court erred in sustaining defendant’s demurrer. If plaintiff proves the allegations of his complaint at trial, he will be entitled to at least a declaratory judgment that such expenditure of public funds was improper, and, perhaps, to injunctive relief as well.
Whether defendant Mott may be held personally liable for the funds which have already been spent presents a more difficult question. Although early California decisions held public officials strictly liable for any unauthorized expenditure of public funds, even when such expenses were incurred in good faith, subsequent legislation has considerably narrowed the circumstances under which public employees are generally held personally accountable for resultant losses. In accommodating the policy underlying this legislative development with the long-recognized public interest in protecting the public treasury from potential mismanagement or abuse, we conclude that defendant may be held personally liable to repay expended funds only if he failed to exercise due care in authorizing the expenditure of the funds. Stanson v. Mott (1976) 17 Cal.3d 206, 209-210.
What is the difference between promotional and informational? Stanson v. Mott says it’s a fine line, but in the case of Mr. Stanson v. Mr. Mott, left it to the trial court to decide:

Problems may arise, of course, in attempting to distinguish improper ‘campaign’ expenditures from proper ‘informational’ activities. With respect to some activities, the distinction is rather clear; thus, the use of public funds to purchase such items as bumper stickers, posters, advertising ‘floats,’ or television and radio ‘spots’ unquestionably constitutes improper campaign activity (see, e.g., Mines v. Del Valle, supra, 201 Cal. at p. 276, 257 P. 530; Porter v. Tiffany, supra, 502 P.2d at p. 1386), as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. (See 51 Ops.Cal.Atty.Gen. 190, 194 (1968); Stern v. Kramersky, supra, 375 N.Y.S.2d 235.) On the other hand, it is generally accepted that a public agency pursues a proper ‘informational’ role when it simply gives a ‘fair presentation of the facts’ in response to a citizen’s request for information (see Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677; Stern v. Kramarsky, supra, 375 N.Y.S.2d 235, 239—240; 51 Ops.Cal.Atty.Gen. 190, 193 (1968)) or, when requested by a public or private organization, it authorizes as agency employee to present the department’s view of a ballot proposal at a meeting of such organization. (See Ed.Code, s 1073;cf. Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677.)

      Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a ‘fair presentation of facts’ relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to ‘Vote Yes,’ have nevertheless been found to constitute improper campaign literature. (See 35 Ops.Cal.Atty.Gen. 112 (1960); 51 Ops.Cal.Atty.Gen. 190 (1968); cf. 42 Ops.Cal.Atty.Gen. 25, 27 (1964).) In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.  Stanson v. Mott (1976) 17 Cal.3d 206, 221-222.
The question, then, is this presentation “fair and impartial?  The mailer does not say Vote for Measure N, (it says “vote on Mesaure N”).  On the other hand, it says that the Chief wants to keep students and school sites safe, and protect schools from intruders, and that many schools have outdated security alarms, inadequate fences and limited lighting. It then says that Measure N is on the ballot.  It then says that the priorities included in Measure N are the following safety and security upgrades.  Arguably, each of these things are true.  However, someone may argue that in placement of the needs and the solutions to that need together, the San Bernardino Unified School District has gone from a strictly informational piece about Measure N to advocating for voters to vote for Measure N.  Further, the style of the mailer looks like a campaign advocacy piece, showing the picture of the Chief in his uniform, showing stock photos of alarms and a fire pull box, and a drug free, gun free, school zone sign.
A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

How the Measures Are Assigned Letters in the San Bernardino County Election November 6, 2012

By Michael Reiter, Attorney at Law

If you ever wondered the legal basis for measures being assigned letters, here is a release from the Registrar of Voters showing both the measures, and their assigned letters for November 6, 2012:

In accordance with California Election [sic] Code §13116(b), the San Bernardino County
Elections Office of the Registrar of Voters has designated the measures below with the
letters N through V. To determine what letter was assigned to each measure, a random
drawing was held at 10:00 a.m. on August 13, 2012.
School Districts
County
Letter Jurisdiction Measure Description
Q San Bernardino Proposed Charter Amendment by the Board of Supervisors to
enact a permanent cap on compensation and mandatory
transparency for members of the Board of Supervisors
R San Bernardino Proposed Charter Amendment by SEBA to enact
compensation limits and budget reductions for members of
the Board of Supervisors
City
Letter Jurisdiction Measure Description
S Needles Proposed Marijuana Business Tax
T Needles Proposed Utility User Tax
U Yucca Valley Proposed 1 cent sales tax for 30 years
V Rialto Proposed business tax on items related to petroleum
products
Letter Jurisdiction Measure Description
N San Bernardino City Unified Proposed Bond Measure to promote student safety and
school repairs
O Yucaipa-Calimesa Joint Unified Proposed Bond Measure to repair and upgrade local schools
P Chaffey Joint Union High School Proposed Bond Measure to improve neighborhood schools

What does California Elections Code section 13116 say?:

(a) In an election at which state, county, city, or other local measures are submitted to a vote of the voters, all state measures shall be numbered in numerical order, as provided in this chapter or division. All county, city, or other local measures shall be designated by a letter, instead of a figure, printed on the left margin of the square containing the description of the measure, commencing with the letter “A” and continuing in alphabetical order, one letter for each of these measures appearing on the ballot.
(b) An elections official may commence designating local measures with any letter of the alphabet following the letter “A,” and continuing in alphabetical order, in order to avoid voter confusion that might result from different local measures carrying the same letter designation in successive elections.
(c) Where two or more counties or cities submitting measures to the voters are in close proximity, the elections officials of those counties or cities may mutually agree to use letter designation for ballot measures that will not conflict or confuse the voter.

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

Measure R Proposed San Bernardino County Charter Amendment Initiative November 6, 2012

By Michael Reiter, Attorney at Law

Voters in the County of San Bernardino are voting on two competing charter amendments.  The first, alphabetically is Measure Q, which I wrote about yesterday.

Measure R is a voter-submitted Charter Amendment, but unlike Measure Q, amends more than just Article VI, Section 1 of the San Bernardino County Charter:

County Counsel, as required by the Government Code, created a summary of the charter initiative:

COMPENSATION LIMITS AND BUDGET REDUCTIONS FOR MEMBERS OF THE
COUNTY BOARD OF SUPERVISORS. INITIATIVE CHARTER AMENDMENT.
Changes the elected office of County Supervisor to a part-time position. Establishes the
maximum monthly compensation for the office of County Supervisor to a total amount of
$5,000 plus a cost of living adjustment not to exceed 5% annually. Cost to the County
of all County Supervisor benefits, including but not limited to, salary, health insurance,
life insurance, leave, retirement, memberships, portable communication devices, and
vehicle allowances shall be included in the $5,000. Establishes a maximum total annual
budget for each Member of the Board of Supervisors at an amount not to exceed five
(5) times the annual compensation amount for each Member. Limits retirement benefits
for the position of County Supervisor to that of regular, non-sworn-peace officer, County
employees. Eliminates the participation by any County Supervisor in the County’s
401(k), 401(a), or 457(b) Plan.

Article I,  Section 1 of the San Bernardino County Charter would be amended to read:

SECTION 1. The Board of Supervisors shall consist of five members, one from
each supervisorial district. The Supervisors shall be nominated and elected at the time
and in the manner provided by general laws, except that provided that each supervisor
shall be elected by the electors of such district and not by the electors of the County at
large.

The position of County Supervisor shall be considered a part-time position.
“Part-time” is defined as attending a minimum of two regular board meetings per
month. Members may hold full-time employment and must comply with economic
disclosure requirements as set forth in the County Code and the California Government
Code. as required.

Article VI, Section 1 would be replaced and Section 2 would be added:

SECTION I. The total compensation of each member of the Board of Supervisors shall be five thousand dollars ($5,000.00) per month, which amount shall include the
actual cost to the County of all benefits of whatever kind or nature including but not
limited to salary, allowances, credit cards, health insurance, life insurance, leave,
retirement, memberships, portable communication devices, and vehicle allowances. This
compensation amount shall be in full compensation for all services by the respective
member of the Board of Supervisors.
Annually, the compensation of Supervisors shall be increased by the percentage
of increase in the cost of living, to be determined by the County Auditor-Controller as of
November I st of each year as shown in the Bureau of Labor Statistics Consumer Price
Index for the Los Angeles Region, not to exceed five percent (5%) per year, provided that
such adjustments shall be rounded to the nearest $100. Any amount of increase in the
cost of living in excess of five percent (5%) may be accumulated and applied to increase
in salary in future years.

The foregoing compensation provisions shall not be changed except by a vote of
the people at the time of a general election.

SECTION 2. The compensation amount provided in Article VI. Section 1 shall
not include amounts deemed to be mandatory employer contributions and/or payments
under state or federal law, including, but not limited to, contributions for social security,
workers’ compensation, unemployment insurance, Public Employee Retirement System,
and reimbursement for actual expenses.

Measure R would add Article I, Section 10:

ARTICLE I. SECTION 10: BOARD OF SUPERVISORS BUDGET
The total annual budget for each Member of the Board of Supervisors, including.
but not limited to, all office operations, and including staff member salaries, office
equipment, rent, vehicle allowances, credit cards. health insurance, life insurance, leave,
retirement, memberships, and portable communication devices shall not exceed five (5)
times the annual compensation amount for each Member as provided in Article VI.
Section I of this Charter. Compensation for each member of the Board of Supervisors
shall be separate and apart from the foregoing amount.
At no time shall any County resources be directed to supplant this provision
through any other county department or division including the County Administrative
Office.
The foregoing compensation provisions shall not be changed except by a vote of
the people at the time of a general election.

The Measure continues with the addition of Article VI, Section 6 to the Charter of the County of San Bernardino:

ARTICLE VI. SECTION 6: RETIREMENT BENEFITS OF MEMBERS OF
THE BOARD OF SUPERVISORS
SECTION 6. Upon the commencement of the next regular individual respective
term of each member of the Board of Supervisors, each member of the Board of
Supervisors shall thereafter be limited to annual retirement pension benefits of regular,
non-sworn- peace officer, County employees. Any supplemental retirement allowance
and/or contribution on behalf of the respective Supervisors is hereby eliminated,
including, but not limited to, participation in the County’s 401(k) and 401(a) retirement
plans; participation in the County’s 457(b) plan is eliminated; and any matching
payment(s) on behalf of any or all of the Supervisors by the County.
For each member of the Board of Supervisors who is a participant in the County
retirement system and/or any successor retirement system (“retirement system”), the
earnable compensation amount used to calculate the relevant pension formula shall
consist of wages derived from the respective Supervisor’s hourly rate equivalent. All
other forms of compensation, including, but not limited to, automobile allowance, health
benefits, insurance, portable communication device allowance, and leave accrual cash-outs
shall be excluded.
The Board of Supervisors shall not take any action, by ordinance, resolution, or
otherwise, which increases the retirement benefits of members of the Board of
Supervisors, with the exception of statutorily-established cost of living adjustments,
without first obtaining the approval of a majority of those qualified electors voting on the
matter.
Prior to placement of any proposed increased benefits on the ballot, the retirement
system shall prepare, or have prepared on its behalf, an actuarial study of the cost and the
funded and unfunded actuarial accrued liability attributable to the retirement benefit
changes proposed by the amendment. Such actuarial study shall be available to the
public and a summary of the actuarial study shall be published in the ballot pamphlet.

The effective date is the next term of each Supervisor.  Measure Q, Section 5.

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