Abusive Code Enforcement

By Michael Reiter, Attorney at Law

I have begun to notice a pattern in complaints about code enforcement agencies lately.

One is that certain cities (especially large charter cities) regarding what they want out of code enforcement. They used to want to use code enforcement tools to eliminate blight and come into compliance.  Now, it seems that many cities want to generate revenue from code enforcement instead of compliance.

The second pattern is that code enforcement is abusing their discretion.  In order to make money, little infractions become major code enforcement violations.  Dormant trees in the winter become unmaintained landscaping. A burnt patch of summer grass becomes lack of landscaping.

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

 

When Should You Contact A Lawyer For A Code Enforcement Problem?

By Michael Reiter, Attorney at Law.

Many California cities have departed from filing misdemeanor or infraction citations or complaints in their local Superior Court.  The reason why is that the Government Code provides a more efficient process with administrative citations.  For many situations, such as leaving your garbage cans out too long, it makes more sense to pay an administrative citation then to be arraigned on a criminal citation.   Further, with the ever-increasing amount of penalties piled upon criminal citations, it is also beneficial to the violator to only have to pay $100 for a ticket.  The city or town benefits because they get the entire fine, minus any processing fee from a third party administrator, versus getting roughly half of the base fine for the criminal citation.  In most cases, the alleged violator does not need an attorney.  Even when it is a criminal case, unless your time is exceedingly valuable or you will be out of the area at the time, it does not make sense to pay an attorney to appear on your behalf.

The number one way to get rid of a code enforcement problem is to come into compliance with the ordinance.  Sometimes that is not possible for financial, logistical, or other reasons.  However, an attorney is often the wrong tool to deal with financial problems, as the attorney’s fee will increase the cost to remedy the situation.  Sometimes an attorney can help with the process and explain the situation, and work with the agency to come up with a compliance plan.

However, with administrative civil penalties cases, where the city wants to charge the property owner up to a thousand dollars a day for a continuing violation, it may make sense to speak to an attorney sooner than later.  Once the citation becomes a lien against the property, depending on the implementing ordinance, it may be impossible for anyone — including a skilled attorney, to do anything about the situation.  Also, attorneys will not guarantee results, because with code enforcement,  the same City that cited the alleged violator that must be convinced to change their course.

Alleged code enforcement violators like to think that they are being singled out for selective enforcement, or some kind of discrimination is at hand.  Though that may be the case, having hundreds of junked cars on a property makes a selective enforcement case difficult to win.  Though code enforcement departments sometimes very technical interpretations of vague municipal codes that are problems, the majority of code enforcement cases are not based on animus towards the property owner.

For out-of town landlords and property holders, it sometimes helps to have an attorney who has dealt with a code enforcement department in the past.  Each code enforcement situation is different, and property owners and tenants should consult with an attorney about their particular situation.

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

How To Act In Front of A Code Enforcement Hearing Officer

By Michael Reiter, Attorney at Law.

Many cities in California have shifted away from hearing boards for administrative hearings and hired hearing officers to hear appeals of administrative citations, administrative actions, and administrative civil penalties.  Here are some general, common sense rules to follow when appearing before a hearing officer.

1. Be prepared.  Bring all the relevant information, including current photographs, and any witnesses on your behalf.  Draft an outline of remarks before the hearing.

2. Be respectful.  There’s no point in being bombastic.  When I was a Deputy City Attorney for the City of San Bernardino, I had the occasion to observe hundreds of hearings in front of a few different hearing officers.  One well-known unlawful detainer attorney argued his way into a higher fine for his client.

3. If you are challenging any aspect of the hearing, make a record.  Submit any objections to the process or hearing officer in writing.

4. As a corollary to be prepared, show up early, watch how the hearing is conducted, and obtain any rules  adopted by the hearing officer or City in advance.

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

In-House City Attorneys in Southern California: When Were They Admitted, Where Did They Attend Law School, and What University Did They Attend?

By Michael Reiter, Attorney at Law

 

This is a continuation of my series about Southern California In-House City Attorneys in California.  This information is gleaned from open and public sources, all online, including the State of California’s website.  This may seem like very personal information, but it is not.  Each of these attorneys are public officials and public figures.  They knew the job was dangerous when they took it.

 

City Name Name of City Attorney Tenure Law School Undergrad Admitted in CA
San Bernardino County
San Bernardino James F. Penman 1987 Western State Univ. CSU San Bernardino 1980
Redlands Daniel J. McHugh 1994 McGeorge SOL Rutgers 1983
Riverside County
Moreno Valley Robert Hansen 2010 Southwestern Univ. Brigham Young Univ. 1987
Riverside Gregory Priamos 2001 Loyola Law School U.S.C. 1988
Los Angeles County
Burbank Dennis Barlow 1997 Univ. of San Diego Brigham Young Univ. 1975
Compton Craig J. Cornwell 2008 Whittier College SOL U.C. Santa Barbara 1994
Culver City Carol Schwab 1997 U.C. Hastings SOL U.C. Berkeley 1985
Glendale Scott H. Howard 1990 Southwestern Univ. U.S.C. 1976
Hawthorne Russell I. Miyahira 2009 U.C. Hastings SOL U.C.L.A. 1986
Inglewood Cal P. Saunders 2006 U.C. Hastings SOL CSU Long Beach 1975
Long Beach Robert E. Shannon 1998 U.C.L.A. SOL U.C.L.A. 1969
Long Beach City Prosecutor Doug Haubert 2010 McGeorge SOL U.C. Santa Barbara 1999
Los Angeles Carmen Trutanich 2009 South Bay Univ., Harbour City, CA U.S.C. 1979
Palmdale Wm. Matthew Ditzhazy 1994 Michigan State Univ. Univ. of Michigan 1985
Pasadena Michele Beal Bagneris 1997 UC Berkeley/Boalt Hall Stanford 1984
Redondo Beach Michael W. Webb 2005 U.C. Hastings SOL U.C. Santa Barbara 1987
Santa Monica Marsha Jones Moutrie 1993 U.C.L.A. SOL U.C.L.A. 1976
Torrance John L. Fellowes III 1993 U.S.C. Law School U.C. Irvine 1981
Orange
Anaheim Cristina Talley 2009 U.C.L.A. SOL Cal. Poly Pomona 1982
Huntington Beach Jennifer McGrath 2002 McGeorge SOL U.C.L.A. 1995
Newport Beach David R. Hunt 2008 McGeorge SOL U.C. Irvine 1983
Orange David A. DeBerry Western State Univ. San Diego State 1989
Santa Ana Joe Straka 2011 Cleveland-Marshall SOL Kent State 1987
Ventura County
Oxnard Alan Holmberg 2008 U.S.C. Law School Oberlin 1975
Simi Valley  Tracy M. Noonan 2009 Southwestern Univ. CSU Long Beach 1994
Thousand Oaks Amy Albano Albany Law School S.U.N.Y (Unknown Location) 1982
Ventura Ariel P. Calonne 2007 U.C. Hastings SOL U.C. Riverside 1983
San Diego County
Carlsbad Ronald R. Ball Santa Clara Univ. Stanford 1977
Chula Vista Glen R. Googins 2010 UC Berkeley/Boalt Hall Dartmouth 1988
Escondido Jeffrey R. Epp 1996 Univ. of Wyoming COL Univ. of Wyoming 1986
National City Claudia Silva 2010 Univ. of San Diego U.C.L.A. 1993
Oceanside John P. Mullen 2006 Univ. of San Diego U.C. San Diego 1992
San Diego Jan Goldsmith 2008 Univ. of San Diego American Univ. 1976
Vista Darold Pieper 2005 U.S.C. Law School U.C.L.A. 1971
Imperial
El Centro Luis F. Hernandez 2008 UC Berkeley/Boalt Hall Santa Clara Univ. 1979

For Law Schools, this is the tally:   U.C. Hastings has  five active in-house City Attorneys,  University of San Diego School of Law has four, McGeorge has four, Boalt Hall (U.C. Berkeley) has three, U.C.L.A. has three, U.S.C. has three, Southwestern has three, Western State University has two, Loyola, Santa Clara, Albany, Whittier, Michigan State, Univ. of Wyoming, Cleveland-Marshall, South Bay University are tied for one a piece.

I am not an in-house City Attorney, but as frequent readers of this site will note, I am a former Deputy City Attorney for the City of San Bernardino, and a former Assistant City Attorney for the City of Redlands.  Roughly, I worked about nine and a half years for those cities, and I was also a clerk in law school for the City of Santa Clara.  I graduated from the Santa Clara University School of Law and the University of California, Berkeley.  I have been admitted in the State of California to practice continuously since 1998.  In private practice, I work in municipal law both for the public and on behalf of public agencies.

Previous posts in the series of In-House City Attorneys in Southern California:

Cost Per Attorney for In-House City Attorney’s Offices in Southern California

Ratio of Attorneys to Population in In-House City Attorney’s Offices in Southern California

An Abbreviated Version of the Chart of In-House City Attorney’s Offices in Southern California

In-House City Attorney’s Offices in Southern California

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

Why an In-House Public Lawyer Should Stay Out of Politics and Not Express Their Opinion if They Are Not Asked

By Michael Reiter, Attorney at Law

Some attorneys are very political.  They donate to local, state and federal candidates.  They hold fundraisers at their multi-million dollar houses (yes, even in the Inland Empire). Sometimes they are very associated with one political party or another.  Some become local officials.  I have no idea if this is beneficial or detrimental  for their practices, firms, well-being, or pocket book.

Public lawyers, and by public lawyers I mean in-house civil attorneys, typically in an in-house City Attorney’s Office or Office of County Counsel, may have opinions but it is usually best if they do not openly express them.  The entity, of course, is the client, but an entity is run by actual human beings.

As long time readers know, I was the Assistant City Attorney of the City of Redlands and a Deputy City Attorney for the City of San Bernardino, each for over four years, for a total of almost nine and a half years.   The environment in each office was different.  In Redlands, it was (then) a two person operation, which, for the size, workload and complexity of the organization, could have accommodated three attorneys.  The City Attorney was and is appointed by the City Council.  A majority of a Council quorum can remove the City Attorney, subject to the City Attorney’s agreement with the Council.  That is a different kind of political environment from the City of San Bernardino.

The City of San Bernardino, with an elected City Attorney, elections every two years, with charter fights, was a Politically-charged entity.  By “Politically,” with a capital P,  I mean municipal election politics.  While the employees of that office felt the secondary effects of the political winds, I was always allowed to do my job.  Certainly, when someone aims for the elected City Attorney, sometimes they hit a deputy.  But for the most part, the Mayor and Common Council, and the staff of the City viewed me, as a Deputy, as a non-c0mbatant.  Humorously, they sometimes treated me as if I were a victim of an evil regime.

People sometimes interpreted, when I was a prosecutor, that I was personally prosecuting people because I was a supporter of whatever ordinance I was prosecuting.   No, I was doing my duty to enforce the rules made by the policy makers.  If there was a problem with a particular rule, a political solution needed to be forged to change the rule.  That political solution was not one that I, as a Deputy City Attorney or the Assistant City Attorney, was going to be a part of, unless I was directed to draft an ordinance by the City Attorney.

Obviously, a wise public lawyer has to fit into the inter-office politics in the in-house environment.   That’s not what I am talking about, and that’s the same in any office with more than one person.  The public lawyer must be political in that sense.

Similarly, as an independent attorney, I do not hold any particular positions on the subjects that I write about.  Even if I am recounting my past actions, I did the things I did because it was my job to do them, because they benefited my public entity client, and it was at the direction of the political decision-makers of the entity.   I was never asked to do anything that was unethical, and even if I were asked to do something unethical, I would not do it.  However, very seldom does the public entity practitioner reach the bounds of the California Rules of Professional Conduct.

For example, someone thought I had a position on allowing Food Trucks in San Bernardino County.  I do not have a personal opinion on the subject.  If a small business retains me to represent them on the subject, my opinion is the same as the client.  I give advice in a neutral fashion, the pluses and minuses of any particular situation.  However, the best interest of the client must be kept in mind at all times.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

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

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

 

City Counsel versus City Council

By Michael Reiter, Attorney at Law

As a follow-up to my How to Become a California Municipal Lawyer post, the first thing you have to always remember is to use counsel and council correctly.  Never write “outside council” or  in a memo, “today at city counsel . . .”

Counsel, in this context, means an attorney.  Council means the entity’s deliberative body.  Being homonyms, it is easy to mix them up as you are typing.   Even WordPress flagged counsel and said “do you mean council?”  It’s a common mistake.

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. #517 Redlands CA 92373
T: (909) 296-6708

Duties of the City Clerk Under California Law In a General Law California City

By Michael Reiter, Attorney at Law

In a general law California city, the City Clerk’s duties are created by state law and by city or town ordinances and resolutions.  State law establishes the duties of  a general law City Clerk in Government Code section 40801, et seq.

The Duties of the California general law City Clerk are:

1. Clerical: Keep accurate record of the legislative body and board of equalization in books bearing appropriate titles and devoted exclusively to such purposes  with a comprehensive general index. The City Clerk shall keep an ordinance book and record all certified city ordinances.   The record with the certificate is prima facie evidence of the ordinance’s passage, publication and contents.  The official records should not be filed in any court proceeding.  The City Clerk is the custodian of the city seal.  The City Clerk can administer City oaths, take and certify City affidavits and depositions, and appoint deputies.  (Government Code sections 40801, 40806, 40807, 40813, 40814);

2. Financial: The City Clerk is the City’s accounting officer and shall retain records reflecting the City’s financial condition.  The City Clerk shall cause to be published a summary of the City’s financial report (required by Government Code section 53891 in the form prescribed by the the State Controller) once in a newspaper of general circulation, or if no newspaper, according to code, and posted no later than 120 days after the fiscal year’s close, and the clerk’s financial and accounting duties can be transferred to the finance director.  The City clerk is the ex officio assessor for the assessment and collection of city taxes unless delegated to the county.  (Government Code sections 40802, 40804, 40805, 40805.5, 40810); and

3. Other:  The City Clerk shall perform “such additional duties as are prescribed by ordinance.” ( Government Code section 40812).

 

The City Clerk also has duties created by the Election Code regarding elections and other duties in the Government Code, such as notifying the county board of supervisors regarding the change of a place name or number (Government Code section 34092).  The Government Claims Act allows a government claim to be filed with a city clerk.  Government Code section 915(a)(1).  The City Clerk is also receives Statements of Economic Interest under the Political Reform Act, as well as other duties under the Act.  Government Code section 87500(f).
Other duties can be prescribed by ordinance.  The City of Rancho Cucamonga, for example, requires certain documents on appeals to be filed with the City Clerk.  As I have mentioned before, often California Public Records Act requests are routed through or answered by the City Clerk.  The City Clerk in Redlands sold Fourth of July tickets at the University of Redlands on behalf of  the Redlands 4th of July Committee, Inc.  Many City Clerks process passports for the State Department.

 

A charter law City’s City Clerk’s duties will be created by the City’s Charter.  For example, the City of San Bernardino’s City Charter, Section 60 is very similar to the Government Code’s prescribed duties.

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

How can code enforcement laws be changed in San Bernardino and Riverside Counties?

By Michael Reiter, Attorney at Law.

How can code enforcement laws be changed in San Bernardino County and Riverside County?   There are legal and political answers to this question.

Ordinances can be adopted, amended or repealed by City Councils or Town Councils.  The exact manner can depend on the composition of the Council and whether it is a general law or charter law municipality.  Similarly, an election might be held to amend or repeal a particular ordinance.  The processes also depend on whether the municipality is governed by general law or governed by a charter.  That is the simple legal answer.

The political answer is that either an elected official, or perhaps an appointed official like a city manager, has to propose a new or modify or repeal and existing ordinance by following the process in the Government Code or the City Charter, as applicable.  Similarly, if elected officials will not take action, individuals or groups can qualify an initiative or referendum to change code enforcement laws.  That is the simple political answer.

When I was a Deputy City Attorney for the City of San Bernardino, someone in the north end of town received a citation for not taking his trash cans in promptly.  This was before the implementation of administrative citations.  He complained that he just wanted to pay the fine and not appear in court on a $100 citation.  I told him that I understood, but that it was a political issue, and that I did not have the authority, as a city lawyer, to change the ordinance.

The first step I would take if I wanted to change an existing code enforcement law would be to contact my city council member.  If I lived in a city with wards, I would contact that city council member.  If I lived in a city with at-large council members, I would call the council member I was most familiar.  If that didn’t work, I would call the Mayor.  If that did not work, I would then consider an initiative or referendum.

Should you hire a lawyer to have the municipal code changed?  Sometimes that is a cost-effective solution, or if not cost-effective, a way to change something you want changed.  However, no attorney will guarantee that you will get your money’s worth. Discuss it with an attorney skilled in dealing with municipalities.

There are two, more complex, legal and political ways that code enforcement laws can change in California.  Get the California Legislature to change state law preempting local law, or challenge an ordinance in court.  Most municipal ordinances are constitutions, but occassionlly,a court rules an ordinance is preempted by state law, outside the local agencies’ powers, or violates the United States or California constitution.

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

Can a public agency make a California Public Records Act Request?

By Michael Reiter, Attorney at Law

Can a public agency make a California Public Records Act Request?   This question has been popular on this blog lately.  People have searched for it on two separate days a few days apart.

When I was a Deputy City Attorney for the City of San Bernardino, I handled a number of Federal Civil Rights cases against the City and the San Bernardino Police Department.  One case involved a man who had earlier had a 42 U.S.C. section 1983 civil rights case against the City of Riverside.  I called up a Deputy City Attorney for the City of Riverside I knew and asked how to get the depositions in the case.  She suggested that I make a California Public Records Act request.  I did so, and I received the depositions.

This is an easy question to answer because there is a published case on the subject.  “Our conclusion that the City is a “person” entitled to request documents from another governmental entity is the only rational and reasonable interpretation of the statute.”  Los Angeles Unified School District v. Superior Court (2007) 151 Cal.App.4th 759, 771.  The confusion comes because the statute  (California Government Code section 6252(c) reads: “(c) “Person” includes any natural person, corporation, partnership, limited liability company, firm, or association.”

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