Public Contracting | Michael Reiter, Municipal Attorney with Milligan, Attorney, Beswick, Levine & Knox LLP Blog

By Michael Reiter, Attorney at Law

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

Codification of the San Bernardino Municipal Code: An Update

November 14, 2011 1 Comment

As a – to my post about the codification of the San Bernardino Municipal Code, here is an update on the situation. The Mayor and Common Council, at their November 7, 2011 meeting, passed Resolution 2011-299 Authorizing the issuance of a Request for Proposals for Municipal Code Codification Services. The staff report to the Resolution painted this unflattering picture of how behind the City is in codification:

Table 1.1 Code Supplement Distribution History from 2008 through 2011

Time Period Distribution Date Note

1/2008 to 3/31/2008 4/2008 on schedule

4/2008 to 6/30/2008 7/2008 on schedule

7/2008 to 9/30/2008 11/2008 1 month behind schedule

10/2008 to 12/31/2008 9/2009 8 months behind schedule

1/2009 to 3/31/2009 9/2009 5 months behind schedule

4/2009 to 6/30/2009 9/2009 2 months behind schedule

7/2009 to 9/30/2009 10/2009 on schedule

10/2009 to 12/31/2009 1/2010 on schedule

1/2010 to 3/31/2010 3/23/2010 1 week ahead of schedule

4/2010 to 6/30/2010 2/2011 7 months behind schedule

7/2010 to 9/30/2010 2/2011 4 months behind schedule

10/2010 to 12/31/2010 Not yet distributed 9 months behind schedule

1/2011 to 3/31/2011 Not yet distributed 6 months behind schedule

4/2011 to 6/30/2011 Not yet distributed 3 months behind schedule

7/2011 to 9/30/2011 Not yet distributed Due this month

What that means is that it is difficult for the lay observer and the outside professional to find out the state of the law.

For those of you who can provide the services, the City has issued the Request for Proposals for Codification Services dated today, November 14, 2011. The response to the RFP is due December 12, 2011 at 5 p.m.

Michael Reiter, Attorney at Law.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

By Michael Reiter, Attorney at Law

Filed under California Public Records Act, City Attorney, City Clerk, City of San Bernardino, Municipal Code, Municipal Law, Public Contracting, San Bernardino City Charter, San Bernardino City Clerk, San Bernardino Municipal Code Tagged with Michael Reiter Attorney at Law, San Bernardino City Clerk

City of San Bernardino’s 1908 Charter Amendments

July 21, 2011 Leave a comment

By 1908, the electorate of the City of San Bernardino decided to make changes to the 1905 Charter. None of these changes survive in the Charter today, but it is interesting to see the evolution of what has been referred to as the “constitution” of the City of San Bernardino. These changes over the years have shaped both the City of San Bernardino as an entity, and the city, as a geographical unit. I have drafted a legislative version (with additions and strikeouts of the 1905 Charter with the amendments to the Charter added by the 1908 election and approved by the California Legislature.

Here are the changes:

The election replaced the 1905 Sec. 182 with a new Section 182 (though it made only a few changes). The selection process for choosing the Chief of Police was changed. The duties of the chief were changed, making him the ex-officio tax collector, and a full member of the board of health. The mayor and common council were given the power to give the Chief of Police no more than one percent of the tax collected, in addition to the $1,500 annual salary given in section 24 of the Charter.

Sec. 182. On or ~~before~~ after twelve o’clock noon of the ~~third~~ second Monday of ~~April~~in May, ~~1907~~next succeeding his election, the mayor shall appoint, a chief of police, subject to the confirmation of the common council~~, some competent person who shall be known as the chief of police of the City of San Bernardino~~. The chief of police, for the suppression of any riot, public tumult, disturbance of the public peace, or any organized resistance against the laws of public authorities in the lawful execution of their functions, shall have the powers that are now, or may hereafter be conferred upon sheriffs by the laws of this state, and shall in all respects be entitled to the same protection; and his lawful orders shall be promptly executed by deputies, police officers and watchmen in the city, and every citizen shall also render aid when required for the arrest of offenders and maintenance of public order. He shall execute and return all process issued and directed to him by any legal authority; and shall enforce all ordinances of the city, and arrest all persons guilty of a violation of the same. He shall prosecute before the competent tribunal all breaches, or violations of city ordinances.

He shall also have charge of the city prison and prisoners confined therein, and all those who are sentenced to labor upon the streets, or public works of the city, and shall see that all orders and sentences in reference thereto are fully executed and complied with, and shall perform such other duties as may be prescribed by the mayor and common council.

The chief of police shall be ex-officio ~~a member~~ of ~~the board~~ of ~~health~~tax collector, and ex-officio license tax collector, and a member of the board of health. He shall collect all taxes and license taxes as prescribed by law and the ordinances of the city. As tax collector and license collector the mayor and common council shall have power to fix extra compensation for the chief of police not to exceed one per cent of the amount actually collected, which shall be in addition to his salary otherwise fixed in this charter.

The 1908 election added a new section 195, subdivision thirteen to read,

Thirteenth—In their discretion to admit non–resident children to any of the departments of the public schoolsof the city, upon ~~the payment, at~~ such ~~time~~ terms and conditions as the board may direct, of tuition fees to be fixed by the board; provided that the tuition fee required and collected shall in no case be less than the cost per capita of maintaining the school to which the pupil is admitteddeem just;

Basically, this change allowed the Board of Education to decide the terms and conditions to admit children outside the district. It is not clear when this section was deleted from the charter, but probably either at the 1961 election or the 1973 election.

The election added Section 238a, which established a minimum wage of $2 a day for public works, and requiring that workers on San Bernardino Public Works projects be “native born or naturalized citizens”:

Section 238a. The time of service of any laborer, workman, or mechanic employed in or upon any of the public works of the city of San Bernardino, or in or upon any work done by or for said city is hereby limited and restricted to eight hours during any one calendar day and no person shall be employed in or upon any such works except he be a native born or naturalized citizen of the United States, and the minimum wages of laborers employed in the execution of any such works shall be $2.00 per day; and there shall be inserted in every contract entered into for any such work a stipulation that no person shall be employed in the execution of such contract who is not a native born or naturalized citizen of the United States, and that in the performance of such work eight hours shall be the maximum number of hours that any laborer, workman or mechanic shall be required or permitted to work on any calendar day, and that $2.00 per day shall be the minimum wages paid to any person employed by the contractor in the execution of his contract: provided, that this section shall not apply to cases of extraordinary emergency, caused by fire, flood or danger to life or property, or to work upon any public, military or naval defenses or works in time of war.

The only trace of section 238a today is a note in the current (2004) City Charter which states in an annotation that “Section 238, Subsection (a) repealed by election held February 6, 1973). It probably was amended some time between 1908 and its repeal in 1973.” To give some context, according to the State of California’s Department of Industrial Relations, California’s first minimum wage was .16 an hour in 1916, so assuming an eight hour day, the minimum set by the Charter was high for the times. I do not know the history or the impetus for the citizenship requirement.

California Senate Concurring Resolution No. 3 [1909] had this preamble which discussed the election and a little of the legislative history of the 1908 amendments:

Whereas, the mayor and common council of the city of San Bernardino did by ordinance number 399, adopted by said mayor and common council on the 19th day of October, 1908, and approved by the mayor of said city on the 19th day of October, 1908, 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 certain amendments to the charter of said city to be submitted to said qualified electors at a special municipal election to be held for that purpose, in said city, on the 28th day of December 1908: and,

Whereas, said proposed amendments were, and each of them was, published for twenty days, in a daily newspaper printed and published in said city and of general circulation therein, to wit. The Evening Index said publication ending on the 16th day of October, 1908; and,

Whereas, the mayor and common council of said city did, by an ordinance known as Ordinance No. 401, which was duly adopted on the 23rd day of November, 1908, call and order the holding of a special election in said city of San Bernardino, on the 28th day of December, 1908. (at least forty days after the publication of said proposed amendments for twenty days, in said daily newspaper of general circulation in said city of San Bernardino, to wit: The Evening Index) and did provide in said ordinance for the submission of said proposed amendments to the said charter at said special election, which said ordinance was approved by the mayor of said city on the 23rd day of November, 1908, and was published, for at least ten days prior to the time appointed for the holding of said election, in “The Evening Index.” a daily newspaper printed and published in said city; and,

Whereas, at said election a majority of the qualified electors voting thereon voted in favor of the ratification of and did ratify three of said proposed amendments to said charter: and,

Whereas, the common council of said city of San Bernardino, pursuant to said charter did, at a special meeting thereof, held at 7.30 o’clock P. M. on the second day after said election, duly canvass the returns of said election and duly found, determined, and declared that a majority of such qualified electors voting thereon, had voted for and ratified three of said proposed amendments to said charter: and,

Whereas, said three amendments to said charter, so ratified by a majority of the qualified electors of said city voting at said election are in words and figures as follows, to wit:

The next amendment o the Charter was passed in 1913.

A: 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

T: (909) 708-6055

By Michael Reiter, Attorney at Law

Filed under Charter, City Attorney, City Clerk, City of San Bernardino, County of San Bernardino, General Law, Municipal Law, Public Contracting, State of California Tagged with Charter of the City of San Bernardino, City of San Bernardino, Michael Reiter Attorney at Law, San Bernardino

City of San Bernardino’s 1905 Charter

July 20, 2011 Leave a comment

This week, I’m focusing on the City of San Bernardino. I am starting with the City of San Bernardino’s original 1905 Charter. The 1905 Charter is the beginning of the modern structure of the City of San Bernardino. It created the Mayor and Common Council. You can still see much of the same verbiage that is found in today’s Charter (passed in full by the voters on November 2, 2004, almost one hundred years later).

Linked here is the City of San Bernardino’s original charter from 1905. The current version omits the preamble and the freeholder’s certificate. The current version of the document was drafted while I was a Deputy City Attorney for the City of San Bernardino. I did not have a hand drafting the current Charter as part of my duties as Deputy City Attorney. However, there may have been a discussion about keeping the freeholder’s certificate, as it certainly was considered a part of the Charter before then.

Here is the preamble from the 1905 Charter, giving the background for adopting the Charter:

Whereas, The City of San Bernardino, a municipal corporation of the County of San Bernardino, State of California, now is and was at all time herein referred to, a city containing a population of more than three thousand five hundred inhabitants and less than ten thousand inhabitants; and

Whereas, At a special municipal election, duly held in said city on the 30th day of July, 1904, under and in accordance with the law and provision of Section eight of Article eleven of the Constitution of said State of California, a board of fifteen freeholders, duly qualified, was elected in and by said city, by the qualified electors thereof, to prepare and propose a charter for the government of said city; and

Whereas, Said board of freeholders did, within ninety days after said election, prepare and propose a charter for the government of the said City of San Bernardino; and

Whereas, The said charter was on the 27th day of October, in the year 1904, signed in duplicate by the members of said board of freeholders and was thereupon duly returned and Charter of filed with the president of the board of trustees of said City of San Bernardino, and the other copy thereof was filed with and in the office of the county recorder of the County of San Bernardino; and

Whereas, Such proposed charter was thereafter published in the San Bernardino Daily Times-Index and in the San Bernardino Daily Sun, each being daily newspapers of general circulation in said City of San Bernardino. The said charter being published for a period of twenty days and more, the first publication thereof was made within twenty days after the completion of said charter; and

Whereas, Said proposed charter was, within not less than thirty days after the completion of said publication, submitted by the board of trustees of the City of San Bernardino to the qualified voters of the City of San Bernardino at the special election previously duly called and therein held on the 6th day of January, 1905; and

Whereas, At said last mentioned special election, a majority of said qualified electors of said city voting at such special election, voted in favor of the ratification of such charter as proposed as a whole; and

Whereas, Said board of trustees after canvassing said returns, duly found and declared that the majority of said qualified electors, voting at special election, had voted for ratifying said charter; and

Whereas, The same is now submitted to the legislature of the State of California for its approval and ratification as a whole without power of alteration or amendment, in accordance with Section eight of Article 11 of the Constitution of the State of California; and

Whereas. Said charter so ratified is in words and figures following, to wit:

The Charter gave the City of San Bernardino a limited version of home rule. Instead of the Board of Trustees of a City of the Fifth Class, it now had a Mayor and Common Council.

There are some key differences between the Charter today and the 1905 Charter. The 1905 charter created a judicial department (a police court), that no long exists. The 1905 Charter governed and created a Board of Education which is now the governing body of the San Bernardino Unified School District. The original charter created the now-defunct City Assessor, and the City Engineer and Superintendent of Streets. The latter two positions are no longer mentioned in today’s Charter. The City no longer has a Health Board, those functions are performed by the County. However, the basic structure of the 1905 Charter is shared with the current Charter. Section 55, though amended, still governs the elected City Attorney.

Here is the freeholder certificate attached to the original Charter, which was omitted from the 2004 Charter:

We, the undersigned, members of the board of fifteen freeholders of the City of San Bernardino, in the State of California, elected at a special election held in said city on the 30th day of July, 1904, to prepare and propose a charter for such city, under and in accordance with Sections 8 and 8 1/2 of Article XI of the constitution of this state, have prepared and we do hereby propose the foregoing as and for a charter for said city.

In witness whereof we hereunto sign our names in duplicate at said City of San Bernardino, this 27th day of October, A. D. 1904.

A. G. KENDALL, President;

JOHN ANDRESON,

H. M. BARTON,

M. L. COOK,

GEORGE M. COOLEY,

J. J. HANFORD,

W. S. HOOPER,

L. D. HOUGHTON,

JOS. INGERSOLL,

JAMES MURRAY,

W. M. PARKER,

H. C. ROLFE,

J. W. CATICK, Secretary.

State Of California, County Of San Bernardino,       }

City Of San Bernardino.                }ss.

I, C. F. Riley, President of the board of trustees of the City of San Bernardino, State of California, do hereby certify that the board of freeholders whose names appear signed to the foregoing proposed charter, together with F. B. Daily and I. R. Brun, who were absent at the time the said charter was signed, and whose names do not appear signed thereto, were, on the 30th day of July, 1904, at a special municipal election held in said City of San Bernardino, on said day, duly elected by the qualified voters of said city, to prepare and propose a charter for said city; that each of said freeholders had been a qualified elector and freeholder for more than five years previous to said election; that the foregoing is a true copy of said charter prepared and returned to me as president of said board of trustees within ninety days after said election, as required by Section eight of Article eleven of the constitution of this state; that such proposed charter was then published in the Daily Times-Index and in the Daily Sun of San Bernardino, for more than twenty days, and that the first publication of said proposed charter was made within twenty days after the completion of said charter; that within not less than thirty days after the publication of said charter as required by said Section eight to-wit: On the sixth day of January, 1905, said charter was submitted at a special election duly held therein for the purpose of ratifying or rejecting said proposed charter.

That said proposed charter as a whole was duly ratified at said election by the majority of the votes of the qualified electors of said city, and that the returns of said election were duly canvassed by the board of trustees of said City of San Bernardino on the ninth day of January, 1905, and the result thereof declared as above set forth and that in all matters and things pertaining to said proposed charter the provisions of said section of the constitution and of the laws of the State of California, pertaining to the adoption of the charter, have been fully complied with in every particular.

In witness whereof I have hereunto set my hand and affixed the corporate seal of said city this 10th day of January, 1905.

C. F. RILEY, President of the Board of Trustees of the City of San Bernardino.

Attest:                                                                         HARRY ALLISON,

[seal]                                                              City Clerk.

Students of San Bernardino History may recognize some of the names.

Albert G. Kendall was a County Supervisor from 1918 to 1926 and namesake of Kendall Drive in San Bernardino, and according to the 1900 Census, County Assessor. John Andreson is the namesake of the Andreson Building, and was later County Supervisor in the 5th District of San Bernardino from 1926 to 1940. At the time of the signing, he was with Farmer’s Exchange Bank. George M. Cooley owned Cooley Hardware. The other names are a little more obscure. Per the 1900 Census, Hiram M. Barton was a fruit dealer. Marian L. Cook was a civil engineer, John Hanford was a handyman, William S.. Hooper was a banker, Lagona D. Houghton owned a cigar store, Joseph Ingersol was a liquor merchant. James Murray was a saloon keeper, Wilbur M. Parker was a machinist. Horace C. Rolfe was a lawyer, Joseph W. Catick was an undertaker, I.M. Brun owned a liquor store (not from the Census), and Frank B. Daily was an attorney. Charles F. Riley, the President of the Board of Trustees of the City of San Bernardino at the Charter’s adoption, was a proprietor of a soda works in 1900. Harry Allison, the City Clerk in 1905, was a telegraph operator in 1900. Joseph Catick was later mayor, elected to two non-consecutive two year terms.

The 1905 Charter sat unamended until amendments passed in 1908.

A: 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

T: (909) 708-6055

By Michael Reiter, Attorney at Law.

Filed under Charter, City Attorney, City Clerk, City of San Bernardino, County of San Bernardino, General Law, Municipal Law, Public Contracting Tagged with Charter of the City of San Bernardino, City of San Bernardino, Michael Reiter Attorney at Law, San Bernardino

Use of the California Public Records Act for Opposition Research

June 17, 2011 Leave a comment

The California Public Records Act (as well as the disclosures required by the Political Reform Act, adjudicative court records) provides an important tool for gathering information about political rivals. Below is a brief overview of the kinds of records that are available to the public, and what can be learned from the types of information.

1. Permit and Property Records. An opponent may be able to find administrative citations, notices of violation, building permits (or no building permits) by making a California Public Records Act request by a parcel number or street address. Some cities will take the view that code enforcement records are criminal investigatory files and refuse to disclose. However, I have found that most cities will disclose this information, with some redactions with the name of reporting parties. Building permits themselves are relatively non-controversial, and will be inspected.

2. Contracts with government entities, particularly entities that are not

3. Litigation with a public entity. This can be a treasure trove of information about the inner workings of government. Depositions are a good source because they are largely unfiltered. Also ask for any government claims, as they may not show up if no lawsuit is filed.

4. Minutes. Opponents can use these to establish a record of voting or non-voting.

5. Electronic mail. Though many public entities have policies of deleting email within a certain amount of time, electronic mail is often very candid and can provide powerful ammunition.

6. Constituent correspondence. You can find specific complaints about public officials and contact the complainants.

7. Correspondence with staff, including electronic mail. Is the political rival abusing staff? Find out by requesting correspondence on matters of importance to the elected official, particularly on matters that have dragged on for a long period of time because of red tape or the involvement of other government agencies.

8. Campaign disclosures. These often have little nuggets of information. For example, sometimes candidates keep committees open long after the election. One reason is because they made a loan of personal funds to themselves, and they hope to some day get paid back when they run a successful campaign in the future. Form 700 Statement of Economic Interests, whether for a candidate or an elected or appointed public official, have valuable information about potential campaign opponents.

9. Web browsing information. This may be subject to some exemptions, the agency may claim that these are not records, and they may be deleted fairly regularly. Request these records early and often.

9. There are many, many more areas which might be helpful. These requests need to be made regularly and not during election season. Records can be destroyed in compliance with California law, so the record you most want may not be there when you need it. Also, the California Public Records Act’s time provisions can be a disadvantage to obtaining records in a timely fashion.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

By Michael Reiter, Attorney at Law.

Filed under Administrative Citations, Building Permit, California Public Records Act, City of Redlands, City of San Bernardino, Code Enforcement, County of San Bernardino, Eminent Domain, Form 700, Government Claims, Municipal Law, Personal Injury Law, Political Reform Act, Public Contracting, Ralph M. Brown Act Tagged with California Public Records Act Request, Michael Reiter Attorney at Law, SANBAG

How to Become a California Municipal Lawyer

June 11, 2011 1 Comment

How does one become a municipal attorney in California? There are a variety of paths to doing so. Municipal Law has its niches, but it also has one of the broadest practices possible. As the City Attorney of a City, you are expected to be a generalist. You have to know a little of everything. As a subordinate to the City Attorney, you can also be a generalist, but typically, you focus on one or a few areas of the law.

Municipal lawyers can be employed in-house in a City Attorney’s Office, or work for a municipal law firm or be a sole practitioner.

You do not necessarily have to work for a City Attorney’s Office or a municipal law firm as a law student. However, from personal experience, it helps you see what a City does on a day-to-day basis. I worked as a clerk in the City of Santa Clara’s City Attorney’s Office in the summer after my first year at Santa Clara University School of Law. I filed papers in Santa Clara Superior Court and did other office tasks. At the City Attorney’s Office in Redlands, I supervised a few interns from La Verne. I helped supervise an intern as a Deputy City Attorney for the City of San Bernardino. She was a certified law student and she tried one of my infraction cases as a 3rd year law student. I would recommend that program to anyone interested in trial work.

That program is formally called the Practical Training of Law Students. I did not do it when I was a law student as I was preparing to become a transactional intellectual property attorney. Instead, I interned at an educational software company in the Silicon Valley. That served me well with both my current small business clients and with my municipal law clients. Cities have large appetites for contracts. Certain clauses work for any client: attorneys’ fees clauses, choice of law and venue, indemnification clauses, insurance requirements and other similar clauses. A city in California is a municipal corporation. It has many of the same needs as any large business.

Is there a particular course of study required to become a municipal lawyer? Not that I have ever seen. I know of no municipal law certificate or other such program, and a very cursory search found no such certificate in California. However, the traditional first year courses are very helpful year after year: Real Property, Criminal Law, Civil Procedure, Contracts, Torts, and Legal Research and Writing. Constitutional Law is very useful.

You never know what kind of law you might be doing for a City, particularly if you are a Deputy City Attorney for a medium or large city. As a Deputy City Attorney and an Assistant City Attorney, I dealt with the following diverse set of circumstances: set and try a Vickers hearing; fight a pro se attorney in Federal court spouting constitutionalist nonsense; attempt to get a deputy public defender disqualified because their spouse once prosecuted their client; get a Superior Court clerk to file an answer and a demurrer at the same time (the Code of Civil Procedure allows it, but it is not seen in nature often), convince a municipal client to get a blanket performance license; write a state assembly bill that united both the disabled and slumlords in opposition; attempt to get a restraining order against a man threatening a code enforcement officer; obtain orders to destroy firearms, defend Pitchess Motions, write agreements to transfer property purchased with Federal funds to a non-profit, help lobbyists organize public meetings in Washington D.C., brief the Ninth Circuit Court of Appeals, create a process to protest County tax sales, and more than I can possibly remember. That’s not even the bread-and-butter of municipal law.

The bread-and-butter is advising commissions, boards, and the council, municipal code prosecutions, defending cities in civil cases, advising departments and staff. Some of it can be exciting; some is very, very dry. As I said, some people specialize, especially in very large offices or firms. You can be municipal bond counsel, a public works attorney, a redevelopment attorney, land use attorney, or a city prosecutor.

So how do you become a California Municipal Lawyer? Some start out of law school, some come in after long careers elsewhere. A good municipal attorney is a good attorney. A good attorney can pick up the specifics on the job. There are many paths, but to me, public law gives an attorney so many options. If you are interested in municipal law, feel free to contact me.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055