City of San Bernardino Bankruptcy: What Did They Know and When Did They Know It?

By Michael Reiter, Attorney at Law

We do not yet know the full story about what went wrong as far as misstatements or miscalculations (incompetence) or concealment (fraud) of numbers in the City of San Bernardino that led to the situation wherein the City of San Bernardino had or has, at some point, less than $150,000 in its bank account.

First, from primary sources, City staff (on July 9, 2012) stated that as of April 3, 2012, City staff was still misreporting the fund balance.

The Finance Department of the City of San Bernardino created a report, dated July 9, 2012 , Page 7:

Starting General Fund balance has been erroneously stated for the past 2 fiscal
years

Fiscal Year                                July 1st Audited Fund Balance              Staff Reported Fund Balance
FY 2009-2010                           $2,708,319                                                     $2,557,900
FY 2010-11                               $410,293                                                             $1,770,400
FY 2011 -12                              $(1 ,181,603)                                                       $2,044,100*
*Mid-Year report presented April 3, 2012.

Going back to the April 3, 2012 meeting in the City of San Bernardino’s online archives, I was unable to find any minutes after January 23, 2012.  Here is the April 3, 2012 Agenda for the Joint Adjourned Regular Meeting of the Mayor and Common Council.

In a staff report by Rebecca Garcia, through City Manager Charles McNeely, for Item 3A, the purpose of the workshop was to “Discuss proposed revenue enhancements and cost containment strategies and provide direction
as to measures to be researched and presented for further Council review, analysis and consideration at a future meeting.”  This staff report includes the chart that gives the $2,044,100 opening fund balance for FY 2011-2012, but also has a different number (then in the July 9, 2012 report) for 2010-2011: $2,998,000.

In the staff report by Jason Simpson, Director of Finance, for Item 1A,  on the April 3, 2012 agenda he warns on Page 10:

A major concern that needs to be noted is that the City’ s General Fund continues to be in an
increasing weakening condition and immediate changes need to be made to reverse this financial
condition, build the General Fund Reserve, and stabilize this fund. If these efforts are not made,
insolvency or bankruptcy may result. The Council has an opportunity to resolve the issue and
change the City’ s course. If not, control may be taken out of the Council’ s hands. [Emphasis Added]

However, on packet page 12, Jason Simpson’s report gives the opening fund balance for 2012 as $2,044,100.

Imran Ghori wrote an article published April 3, 2012 at 9:15 p.m., “San Bernardino: City Faces $3.8 millon shortfall[;] The decline in sales and property taxes are hurting the city, a mid-year budget report shows.”  The story starts:

San Bernardino could be headed for insolvency or bankruptcy if it’s not able to get its general fund budget under control, according to a mid-year budget report presented to the mayor and City Council on Tuesday. [Emphasis Added].

The first time the fund balance issue was in the traditional press is in The Sun, “San Bernardino facing bankruptcy if deep cuts aren’t made” by Ryan Hagen, posted online on July 7, 2012 at 8:13:10 p.m. PDT.  In the article, ”

“[Council member Wendy] McCammack also said she was troubled by the budget report’s note that the general fund’s starting balance has been erroneously stated for the past two fiscal years.

That reached a peak several months ago, when then-City Manager Charles McNeely said the fund had a balance of $2 million but the audited fund balance on July 1 turned out to be in the red by $1.2 million.

It appears that the first time that City Attorney James F. Penman mentioned, in public, that 13 out of 16 budgets may have been falsified (and I am paraphrasing from the press account) was at the July 9, 2012 Council Meeting.

As far as what did people know and when did they know it, the rest is from press articles. This article, from public radio station KPCC, “San Bernardino authorities confirm probe into city finances” by Steven Cuevas with Nick Roman, posted 6:00 a.m. on Friday, July 13, 2012 says:

Before the San Bernardino City Council’s bankruptcy vote Tuesday, City Attorney Jim Penman announced that unidentified city administrators had cooked the books to make it appear the city had more cash in reserve than it actually had.

The alleged deceit was uncovered during an audit by new finance staff working under interim city manager Laura Travis-Miller, who took over four months ago.

. . .

Sixth District [sic] councilman Rikke van [sic] Johnson said Penman gave a short briefing to council members prior to the council’s emergency budget meeting Tuesday. But he said it was short on details.

“It wasn’t nothing as far as, ‘OK, this year that happened’ or ‘that year, this happened’ or anything like that,” said Van [sic] Johnson.

“There wasn’t no specifics, other than he said that it’s under investigation. And unfortunately, what was said in that so-called briefing should have stayed in that so-called briefing and went to the right parties. Because we’re dealing with an even bigger issue then that that as far as bankruptcy. All the sudden your issue becomes the lead issue when it shouldn’t be.”

Presumably, this information was given in closed session.
This blog piece comes from an interview yesterday with Interim City Manager Andrea Travis-Miller:  The piece appears in the Los Angeles Times Blog LA NOW, posted July 13, 2012 at 7:25, by Abby Sewell and Phil Willon, labled “Criminal Probe

Miller said the city’s financial problems had been evident for many years, but the full scope was not evident until more recently, when she and the new finance director took a hard look at the books.

She said there had been inaccurate financial reporting in the city for many years, which delayed the process of understanding the full financial picture, but she said she had not seen evidence of deliberate wrongdoing.

“I have not found that there’s anything more than negligence, maybe sloppiness,” she said, adding that staffers at the time were stretched thin because of cuts.

Andrea Travis-Miller became acting City Manager on May 8, 2012, but was assistant before.  Jason Simpson began work on March 28, 2012.  So, if the quotes from Andrea Travis-Miller are correct, the problem was found sometime between March 28, 2012 and when the July 9, 2012 report was posted.

Bankruptcy was first mentioned in the April 3, 2012 staff report.  The misstating of the fund balance was found some time after March 28, 2012, but not reported on April 3, 2012 by Jason Simpson in his staff report.  The first public document showing the wrong data for two years was in a report for the July 9, 2012 meeting.  Time will tell  what they knew, and when they knew it.

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

What Charter Reform Measures Might Have Helped the City of San Bernardino Avoid Bankruptcy? An Elected Auditor and an Elected City Prosecutor.

By Michael Reiter, Attorney at Law

We do not yet know the full story about what went wrong as far as misstatements or miscalculations (incompetence) or concealment (fraud) of numbers in the City of San Bernardino that led to the situation wherein the City of San Bernardino had or has, at some point, less than $150,000 in its bank account.  Some political campaigns in San Bernardino County have more than that in their accounts right now.

The Finance Department of the City of San Bernardino created a report, dated July 9, 2012, that blames, on page 1 in the Executive Summary:

. . . the City is still facing insolvency due to a variety of issues including accounting errors, deficit spending, lack of revenue growth, and increases in pension and debt costs.

Something went wrong with the way government is supposed to work, with checks and balances regarding these unspecified accounting errors.

The Charter of the City of San Bernardino has a variety of checks and balances, and there are also external checks and balances in the municipal system of government from California law and to some extent in Federal law.

Within today’s Charter, there are eleven elected officials in the City of San Bernardino: Council members from seven geographical wards, an elected Mayor, an elected City Clerk, an elected City Treasurer, and an elected City Attorney. However, the structure if the City lacks an appropriate check and balance to find either a well-concealed fraud, or even a miscalculation of numbers that appeared on financial reports but did not reflect actual amounts.

Here is the problem, from the same July 9, 2012 report, Page 7:

Starting General Fund balance has been erroneously stated for the past 2 fiscal
years

Fiscal Year                                July 1st Audited Fund Balance              Staff Reported Fund Balance
FY 2009-2010                           $2,708,319                                                     $2,557,9oo
FY 2010-11                               $410,293                                                             $1,770,400
FY 2011 -12                              $(1 ,181,603)                                                       $2,044,100*
*Mid-Year report presented April 3, 2012.

Shouldn’t an audit have found the problem? Maybe, but if there was actual fraud, it can be difficult to find because some skilled in financial deceit can falsify document to make the numbers match up.  Even if a skilled City Council member with a background in accounting exists, they probably won’t find the discrepancy.   However, from these numbers, it seems that an audit did catch these numbers, though it doesn’t say when and who it was reported to.

What about the City Treasurer?    The Treasurer’s Duties are:

The Treasurer shall receive and pay out all moneys belonging to the City, and shall keep an account of all receipts and expenditures, under such rules and regulations as may be prescribed. He/She shall make a
monthly statement to the Mayor and Common Council of the receipts and expenditures of the preceding month, and shall perform all duties required of him/her by law and the Mayor and the Common Council. He/She shall not pay out any monies belonging to the City except on claims presented, allowed and submitted in the manner provided by this Charter.   Charter section 70.

However, if numbers are falsified by members of the Finance Department (which the Charter gives day-to-day supervision to the City Manager), the City Treasurer’s Office may not catch the problem.

What then, is the answer?  Part 1, Create a City Auditor, like the City of Los Angeles Controller, that is elected and has the power to audit, investigate, and request prosecution or discipline according to the needs of the situation.

The Controller in Los Angeles, per the Los Angeles City Charter, has these duties:

BookmarkSec. 260.  Auditor and General Accountant.

The Controller shall be the auditor and general accountant of the City and shall exercise a general supervision over the accounts of all offices, departments, boards and employees of the City charged in any manner with the receipt, collection or disbursement of the money of the City.  The Controller shall be elected as provided in Section 202.

BookmarkSec. 261.  Powers and Duties.

The Controller shall:

(a)     appoint assistants, deputies, clerks and other persons as the Council shall prescribe by ordinance;

(b)     prescribe the method of keeping all accounts of the offices, departments, boards or employees of the City in accordance with generally accepted accounting principles, except that any change of the system of accounting shall first be authorized by the Council;

(c)     regularly review the accounting practices of offices and departments and upon finding serious failings in accounting practices, be empowered to take charge of the accounting function, and thereafter assist the office or department in implementing appropriate accounting standards and practices;

(d)     maintain a complete set of accounts which shall be deemed the official books and accounts of the City, which shall show at all times the financial condition of the City, the state of each fund, including funds of departments responsible for managing their own funds, the source from which all money was derived and for what purposes all money has been expended;

(e)     in compliance with generally accepted government auditing standards, audit all departments and offices of the City, including proprietary departments, where any City funds are either received or expended; be entitled to obtain access to all department records and personnel in order to carry out this function; establish an auditing cycle to ensure that the performance, programs and activities of every department are audited on a regular basis, and promptly provide completed audit reports to the Mayor, Council, and City Attorney and make those reports available to the public;

(f)     maintain a reconciliation between the accounts in all offices and departments with the accounts in the Controller’s office, and from time to time, verify the condition of all City funds in the City Treasury, and report to the Mayor and Council thereon;

(g)     allocate among the several respective funds all public money at any time in the City Treasury not otherwise specifically allocated and appropriated by law or ordinance, and promptly notify the Treasurer of the allocation or appropriation;

(h)     report to the Mayor and Council, at times established by law, the condition of each fund, and make other reports as the Mayor or Council requests;

(i)     maintain each fund on a parity with its obligations at all times by transferring from the Reserve Fund as a loan to any fund which may become depleted through tardy receipt of revenues, and upon receipt of revenues sufficient to make an allocation as will restore each fund to parity, retransfer the amount of the loan to the Reserve Fund;

(j)     monitor the level of debt incurred by the City and report periodically to the Mayor and Council on City debt; and

(k)     conduct performance audits of all departments and may conduct performance audits of City programs, including suggesting plans for the improvement and management of the revenues and expenditures of the City.  Nothing in this subsection shall preclude the Mayor or Council from conducting management studies or other review of departmental operations.

BookmarkSec. 262.  Approval of Demands on Treasury.

(a)     The Controller shall, prior to approval of any demand, make inspection as to the quality, quantity and condition of services, labor, materials, supplies or equipment received by any office or department of the City, and approve before payment all demands drawn upon the Treasury if the Controller has adequate evidence that:

(1)     the demand has been approved by every board, officer or employee whose approval is required by the Charter or ordinance;

(2)     the goods or services have been provided, except that advance payment may be authorized by ordinance for specified categories of goods and services;

(3)     the payment is lawful;

(4)     the appropriation for the goods or services has been made;

(5)     the prices charged are reasonable;

(6)     the quantity, quality and prices correspond with the original specifications, orders or contracts; and

(7)     any additional criteria established by ordinance have been satisfied.

(b)     Notwithstanding subsection (a), the Controller shall delegate to the various offices and departments the duties of inspection of goods and services and approval of demands, in accordance with methods for inspection and approval established by the Controller, but the Controller may suspend the authority delegated pursuant to this subsection upon a finding of abuse of that authority or on a determination that the office or department lacks adequate controls to exercise that authority properly.  In the event of suspension of the authority delegated pursuant to this subsection, the Controller shall assist the office or department to achieve adequate controls and standards prior to reinstatement of that authority to the office or department.

(c)     The Controller shall withhold approval of any demand, in whole or in part, if there is a question as to whether it is improper, illegal, or unauthorized, and immediately file a report with the Mayor and Council stating the objections to the demand.  The Council shall promptly consider the report and may overrule or sustain the objections of the Controller.

(d)     The Controller shall keep a record of all demands on the Treasury approved by the Controller and of all demands to which objections have been made and overruled.

BookmarkSec. 263.  Approval of Expenses of Controller.

All demands for the expenses of the office of the Controller shall, before payment, be presented to the Mayor, who shall have the same powers as to approval or disapproval as are exercised by the Controller in the case of other demands. The action of the Mayor shall be subject to review by the Council.

BookmarkSec. 264.  Reduction of Demand on Treasury.

No demand upon the Treasury shall be allowed by the Controller in favor of any person or entity indebted to the City without first deducting the amount of the indebtedness, to the extent permitted by law.

BookmarkSec. 265.  Payment of Bonds.

Nothing in this Article shall be construed as interfering with or preventing the payment by the Treasurer of principal and interest on bonds payable by the City in accordance with the California Constitution, laws and ordinances authorizing the issuance and payment of those bonds.

BookmarkSec. 266.  Periodic Surveys of Proprietary Departments.

(a)     The Controller, Council and Mayor shall jointly cause, at least once in every five years, an industrial, economic and administrative survey to be made of the business and property of each of the Harbor, Water and Power and Airports Departments and shall select an independent qualified industrial engineer or organization specializing in such surveys to conduct the survey.  The cost of each survey shall be paid for from the funds of the surveyed department.

(b)     Each survey shall be made in consultation with the Mayor and City Council to ascertain if the surveyed department is operating in the most efficient and economical manner.

(c)     A copy of the report of each survey shall be transmitted to the Mayor, Council, and board of the surveyed department and shall be made available to the public.

Solution Part 2: Create an Elected City Prosecutor.  The City Attorney in San Bernardino is already the City prosecutor.  However, by splitting the functions, the City will have the best of both worlds.  An elected City Attorney will give advice to the City as an entity without the fear of being fired for not giving advice to the other elected officials in power, and a City prosecutor can prosecute violations of the Municipal Code and the areas of State law given by Charter or state law with the independence necessary, with the independently elected City Auditor, to root out these kinds of corruption.

If an elected City Attorney is an elected watchdog, a City Prosecutor would be doubly so.  The City Attorney’s client is the City of San Bernardino, the entity, and the City Attorney must protect the entity’s pocket book.  The role of exposing corruption sometimes is at odds with that goal.  Adding a separate elected City Prosecutor can rectify that situation and protect, in the long run, the People’s interest without regard to the City’s financial interest.

Of course, the bad numbers shown above do not add up to the alleged deficit, but if Council members were going on the correct numbers to start with, perhaps they would not have made the political choices that led to the fiscal emergency.

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

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

The San Bernardino General Municipal Election: A History

By Michael Reiter, Attorney at Law

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

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

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

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

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

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

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

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

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

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

Charter section 10 was next amended in 1949 to read:

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

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

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

In 1966, section 10 was amended again:

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

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

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

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

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

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

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

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

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

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

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

Codification of the San Bernardino Municipal Code: A 2012 Update

By Michael Reiter, Attorney at Law

In 2011, I wrote two pieces on codification of the San Bernardino Municipal Code, and an update on the situation.

From the second piece:

To recap, The Mayor and Common Council, at their November 7, 2011 meeting, passed Resolution 2011-299 Authorizing the issuance of a Request for Proposals for Municipal Code Codification Services.  The staff report to the Resolution painted this unflattering picture of how behind the City is in codification:

Table 1.1 Code Supplement Distribution History from 2008 through 2011

Time Period Distribution Date Note
1/2008 to 3/31/2008 4/2008 on schedule
4/2008 to 6/30/2008 7/2008 on schedule
7/2008 to 9/30/2008 11/2008 1 month behind schedule
10/2008 to 12/31/2008 9/2009 8 months behind schedule
1/2009 to 3/31/2009 9/2009 5 months behind schedule
4/2009 to 6/30/2009 9/2009 2 months behind schedule
7/2009 to 9/30/2009 10/2009 on schedule
10/2009 to 12/31/2009 1/2010 on schedule
1/2010 to 3/31/2010 3/23/2010 1 week ahead of schedule
4/2010 to 6/30/2010 2/2011 7 months behind schedule
7/2010 to 9/30/2010 2/2011 4 months behind schedule
10/2010 to 12/31/2010 Not yet distributed 9 months behind schedule
1/2011 to 3/31/2011 Not yet distributed 6 months behind schedule
4/2011 to 6/30/2011 Not yet distributed 3 months behind schedule
7/2011 to 9/30/2011 Not yet distributed Due this month

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

The Mayor and Common Council will consider, at the February 7, 2012 meeting, awarding  the Code Publishing, Inc. of Seattle, Washington.  However, in the staff report and the resolution, you can see tension between the City Attorney’s Office and the City Manager’s Office:

Proposals were then evaluated by a selection committee comprised of City staff representing the City Clerk’s and City Manager’s offices, Public Works, Information Technology, and Community Development departments. The City Attorney’s Office was invited to participate and identified a representative from their office to take part in this process. The representative was present during one of the presentations; however, the City Attorney’s Office was unable to attend the other presentations and did not participate in the evaluation process.  [Emphasis added]

The selection committee recommends that Code Publishing, Inc., be awarded the contract. While all of the codification companies are qualified to provide the needed services, Code Publishing, Inc., received the highest ranking scores based on their flexible pricing, customer service-oriented approach, quality of electronic publishing and internet services, and legal publishing expertise.

. . .

Recodification and the regular distribution of supplement materials is a necessary undertaking to maintain transparency of the City’s Code. It is the City’s responsibility to maintain its laws in a current and comprehensive format. When the Code contains conflicts or discrepancies and outdated or incorrect references it cannot be an effective tool for residents and enforcement officials to follow and enforce the laws with consistency and accuracy. Moreover, the public, including property and business owners and developers, are poorly served by not having access to updated codes in order to assess information necessary when, for example, applying for business registrations, building permits, or planning new development options.

Outsourcing codification services is a standard practiced by most California cities. A recent survey conducted by staff shows that 91 percent of California cities outsource codification services. Of the 362 cities governed by general law, 332 or 92 percent of cities outsource codification services. Of the 120 charter cities in California, 105 or 88 percent of cities outsource codification services. Within the group of charter cities, 9 or 82 percent of the 11 charter cities that elect a city attorney outsource codification services. [Emphasis added]

By outsourcing services, the City will be able to promptly provide subscribers with quarterly supplements while reducing the time the City Attorney’s and Clerk’s offices and the Planning Division devote to codifying, indexing, proofreading, publishing, and distributing activities. While the City Attorney’s Office is responsible for drafting proposed ordinances and resolutions, the Planning Division is responsible for updating changes to the Development Code (Title 19). Title 19 is one of the most dynamic sections of the Code with the largest number of annual amendments (20 amendments in three years).

The mostly unexecuted version of the resolution says “decline to sign” and the initials “JFP.” City Attorney James F. Penman has declined to approve the resolution as to form.  From time to time, the City Attorney does not sign resolutions or agreements.  The reasons he declined to do might be found by examining the minutes and video of the November 7, 2011 Council Meeting.

Video on the discussion surrounding the item is available on the City’s website, and the item is about at the 3:37:00 mark. For context, the meeting was the day before the Primary Municipal Election. City Attorney Penman said that the first he heard about it was when it appeared on the agenda.  He said the situation was low priority and created by Council not fully funding the City Attorney’s Office, because the Legal Secretary II responsible has been taken off codification and placed on litigation.  He took issue with the cost of $40,000, and said it could be done for $10,000 using a part-time legal secretary without benefits.

Council member McCammack said that City Manager McNeely’s staff had politicized the issue.  She also said that it was more important to pay the $40,000 in defending the liability cases.

Council member Marquez asked about other cities contract with vendors, and City Clerk Rachel Clark said that the Clerk’s Office did a survey but that she didn’t have the numbers with her at the Council Meeting.

Council Member Jenkins said that the money could be better used on potholes, trimming trees or broken street lights.

Council member Kelley had concerns that sending out the RFP would start an unavoidable path to paying for outside codification.

City Attorney Penman said that the biggest request was to annotate the code and Charter with case law, and the codification company would charge extra. City Attorney Penman said that they were ahead of schedule a year before, but that staff had been taken off of it, and that it was not high priority.

Mayor Morris said that the City Attorney’s Office would be part of the RFP process.

Council member McCammack asked which staff would be involved with the codifier to make sure the codifier was making accurate changes to the code.  City Manager McNeely said that the City Attorney and City Manager and City Clerk’s Office would be involved, and that mostly the City Clerk’s Office would be involved.

City Clerk Clark highlighted the times that the City Attorney’s Office was late in the quarterly updates, but when confronted said that it had been on time before the highlighted period.  She also said that it was during Tom Minor’s administration that it came in-house.  Council member McCammack said the item was a political ploy to embarrass the City Attorney’s Office.
The first public speaker said that it was difficult to find the code online, particularly related to code enforcement.  The second speaker was then-City Clerk candidate Esther Jimenez discussed an issue regarding a proposed tobacco ordinance in the past which wasn’t really related to the discussion (and City Attorney Penman disputed her view of the events).
City Attorney Penman disputed the part of the RFP that there was a need to make corrective measures to the existing code, and he said that Council had blocked some moves already proposed by the City Attorney’s Office, and that his Office didn’t have the resources to make the needed changes.  City Attorney Penman said that all hands were defending lawsuits so that no one could participate in the selection process.

The Common Council voted on strictly partisan lines.  According to the minutes of November 7, 2011, Resolution 2011-299 was passed on a 4 to 3 vote with Council members Virginia Marquez (1st Ward), Tobin Brinker (2nd Ward), Fred Shorett (4th Ward) and Rikke Van Johnson (6th Ward) in favor; Robert Jenkins (2nd Ward), Chas Kelley (5th Ward) and Wendy McCammack (7th Ward) opposed.
Update:  The Common Council voted 5-2 (Shorett and Johnson opposed) to continue the item to March 19, 2012, where, given the new majority will most likely be defeated, if it even comes to a vote.

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

Voter Pamphlet in the February 7, 2012 San Bernardino City Clerk General Municipal Election

By Michael Reiter, Attorney at Law

The San Bernardino County Registrar of Voters has the Voter Pamphlet online, including candidate statements, a copy of the ballot showing ballot position, voting instructions and a letter from San Bernardino City Clerk Rachel Clark.  The materials are in English and Spanish.

The General Municipal Election is the run-off from the Primary Municipal Election held in November 2011.  The top two candidates were Amelia Sanchez Lopez and Georgeann “Gigi” Hanna, and they are the only candidates in this race.  This is an all mail-in election, and the votes must be received by February 7, 2012.

For more coverage of the San Bernardino General Municipal election, go to sbdpolitics.com.

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

Michael Reiter, Attorney at Law.

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

Mailbag: The League of California Cities Ethical Princples for City Attorneys and the San Bernardino City Attorney

By Michael Reiter, Attorney at Law

Jeff Thurman of San Bernardino asked me this question on my Facebook page, and I told him on Facebook I would write about here at the blog:

“Would be interested in your take on CA City Attorney Code of Ethics regarding Mr. Penman’s activities in the last election.”

I do not know Jeff Thurman, I only know that he posted this on Gigi Hanna’s campaign website, which I had seen before today:

“Jeff Thurman I campaigned for David McKenna – if you’d like my help, please contact me.”

Here is some Background for people unfamiliar with the context of this election:  San Bernardino, a charter city in Southern California, had a primary election in November 2011.   David McKenna was a candidate for City Attorney in November 2011.  The incumbent, James F. Penman, won reelection.  Gigi Hanna is a candidate for City Clerk in the San Bernardino City General Election in 2012, after having been one of the top two candidates in 2011.  Amelia Sanchez Lopez was the top vote getter in the City Clerk’s race, and in the primary election, she shared elections signs with City Attorney James Penman.  City Attorney Jim Penman was first elected in 1987 and has been elected every four years since; he defeated City Attorney Ralph Prince, who first won election in 1959.  City Attorney Jim Penman’s opponents say that he is a polarizing figure, and have accused him of a variety of ills, including a lack of professionalism, including numerous ethics complaints to the State Bar of California over a number of years.  However, he has no public record of discipline by the State Bar of California

This blog is neutral politically, my only loyalty is to my clients, and I do not currently represent the City of San Bernardino, nor have I since January 2, 2006.

Mr. Thurman is asking about is not the California Rules of Professional Conduct or the California Business and Professions Code’s mandatory ethics rules and duties that each attorney in California must follow.  His reference  of “CA City Attorney Code of Ethics” is to a document properly called “Ethical Principals for City Attorneys” adopted on October 6, 2005 by the League of California Cities City Attorneys Department Business Section, and I believe (since I was at the conference as Assistant City Attorney for the City of Redlands, but I could find no citation) ratified by the City Attorney Section of the League of California Cities by a voice vote in May 2006.

There is some misunderstanding about this document, particularly in San Bernardino, and what it means.  First, the League of California Cities is not a governmental entity.  According to the League itself, the “League of California Cities is an association of California city officials who work together to enhance their knowledge and skills, exchange information, and combine resources so that they may influence policy decisions that affect cities.”

The League does wonderful work, particularly with its conferences.  I have attended a few League functions, and they are very educational.  I have been both to a League of California Cities Spring City Attorney’s Conference and the Annual Conference.  I was also the City of Redlands’ staff member for the League of California Cities, Inland Empire Division, Legislative Task Force for a period of time as Assistant City Attorney for the City of Redlands.  I also contributed to the League’s California Municipal Law Handbook by reviewing a section during my time in Redlands (the book is now published by CEB).

However, its injection into San Bernardino politics, is a red herring, for a few reasons to be discussed later.

Here is the preamble: of the Ethical Principles for City Attorneys:

Preamble

A city attorney occupies an important position of trust and responsibility within city government.  Central to that trust is an expectation and commitment that city attorneys will hold themselves to the highest ethical standards.  Every effort should be made to earn the trust and respect of those advised, as well as the community served.

The City Attorneys Department of the League of California Cities has therefore adopted these ethical principles to:

  •   Serve as an aspirational guide to city attorneys in making decisions in difficult situations,
  •   Provide guidance to clients and the public on the ethical standards to which city attorneys aspire, and
  •  Promote integrity of the city and city attorney office.

City attorneys are also subject to the State Bar’s Rules of Professional Conduct.  For an explanation of how the rules apply to city attorneys, please see Practicing Ethics published by the League of California Cities in 2004, available at www.cacities.org/attorneys.   These aspirational ethical principles are not an effort to duplicate or interpret the State Bar’s requirements or create additional regulatory standards.

The role of the city attorney and the client city varies.  Some city attorneys are full-time public employees appointed by a city council; some are members of a private law firm, who serve under contract at the pleasure of a city council.  A few are directly elected by the voters; some are governed by a charter.  When reflecting on the following principles, the city attorney should take these variations into account.

The city attorney should be mindful of his or her unique role in public service and take steps to ensure his or her words and deeds will assist in furthering the underlying intent of these principles.

Note the statement that these principles are “aspirational ethical principles.”   Note also that the “role of the city attorney and the client city varies.”  That is certainly the case in the relatively few cities in California which are elected City Attorneys.  There are 11, and the link to the left tells you they are San Francisco, San Diego, Los Angeles, Compton, Huntington Beach, Oakland, San Bernardino, Long Beach, San Rafael and Chula Vista.

The preamble continues a “few are directly elected by the voters” which is a grudging nod to the peculiar institution of the elected city attorney in California.

To better understand what Mr. Thurman is talking about, former City Attorney candidate Marianne Milligan alleged, both in 2007 when she was running to be City Attorney and 2011 in an opinion piece in the Sun on August 25, 2011 that City Attorney James F. Penman, provided in part (I don’t have access to the full version, and this is only part of the version that is available elsewhere on the web):

It is important that we, the voters, understand that city attorneys in California are expected to abide by ethical principles adopted by the City Attorneys Department of the League of California Cities.

This universally adopted Code of Ethics states: There should be “no politicization” of the office of city attorney and more specifically states “the city attorney or persons seeking to become city attorney should not make campaign contributions to or participate in campaigns of that city’s officials.”

Marianne Milligan was my immediate supervisor at the time that I transitioned from a Deputy City Attorney in San Bernardino to become the Assistant City Attorney for the City of Redlands, and before that we were briefly Deputy City Attorneys together in San Bernardino (though she was of higher rank).  In that time, and since, I never had any problems with her either as a boss or as a coworker.  We last spoke when she was leaving Code Enforcement in 2010 and I believe that we are on good terms though we haven’t spoken since 2010.

I think that it is unfair to categorize a document which purports to be “aspirational ethical principles” and designed for the vast majority of city attorneys that are either in-house and appointed or are outside contract attorneys as “universally adopted.”

The “aspirational ethical principles” fail to take into consideration the needs of the eleven elected City Attorneys in California. And the basic fact is that an elected official inherently is involved in politics because they are elected.  It is also incorrect to say that city attorneys in California are expected to abide by the principles; the use of the passive voice is no doubt intentional, even the preamble says that the “aspirational ethical principles are not an effort to duplicate or interpret the State Bar’s requirements or create additional regulatory standards.”

Here is the politicization principle: from the aspirational principles:

Principle 3 (No Politicization).  The city attorney should provide legal advice in a manner that avoids the appearance that the advice is based on political alignment or partisanship, which can undermine client trust.

Explanation.  The city attorney and the city attorney’s advice needs to be trusted as impartial by the entire council, staff and community. 

 

Examples
1.        The city attorney should provide consistent advice with the city’s overall legal interests in mind to all members of the city team regardless of their individual views on the issue.
2.        Each city council member, irrespective of political affiliation, should have equal access to legal advice from the city attorney, while legal work on a matter consuming significant legal resources should require direction from a council majority.
3.        The city attorney or persons seeking to become city attorney should not make campaign contributions to or participate in the campaigns of that city’s officials, including candidates running for that city’s offices or city officers running for other offices.  For private law firms serving as city attorney or seeking to become city attorney, this restriction should apply to the law firm’s attorneys.

4.         When considering whether to become involved in policy advocacy on an issue that may potentially come before the city, the city attorney should evaluate whether such involvement might compromise the attorney’s ability to give unbiased advice or create the appearance of bias.

The example in 3 shows why this does not apply to the City of San Bernardino because the City Attorney has to participate in the campaign of at least one city official, their own.  A better guide of what the City Attorney should and should not do is the Charter of the City of San Bernardino.

The Charter of the City of San Bernardino, as amended in 2004, effective in 2006 reads:

Section 55. Position – Duties – Salary. (a) The office of City Attorney shall

be a full-time position, and the incumbent shall not engage in private practice.

(b) To be eligible to hold the office of City Attorney, the person elected or

appointed shall be an attorney at law, duly licensed as such under the laws of the

State of California, and shall have been engaged in the practice of law for at least

five (5) years prior to his/her election or appointment, and shall have been a

resident and elector of the City for a period of at least thirty (30) consecutive days

next preceding the appointment or the filing of nomination papers for election to the

office.

(c) In the event a vacancy shall occur in the office of City Attorney during

his/her term, such vacancy shall be filled by appointment by the Mayor and

Common Council, which appointment shall be valid until the next general municipal

election, at which time a City Attorney shall be elected for the remainder of any

unexpired term, or for a full term in accordance with Article II of this Charter.

(d) The City Attorney shall be the chief legal officer of the City; he or she

shall represent and advise the Mayor and Common Council and all City officers in

all matters of law pertaining to their offices; he or she shall represent and appear

for the City in all legal actions brought by or against the City, and prosecute

violations of City ordinances, and may prosecute violations of State law which are

misdemeanors or infractions and for which the City Attorney is specifically granted

the power of enforcement by State law without approval of the District Attorney, or

those violations which are drug or vice related; he or she shall also act and appear

as attorney for any City officer or employee who is a party to any legal action in his

or her official capacity; he or she shall attend meetings of the City Council, draft

proposed ordinances and resolutions, give his or her advice or opinion in writing

when requested to do so in writing by the Mayor or Common Council or other City

official upon any matter pertaining to Municipal affairs; and otherwise to do and

perform all services incident to his or her position and required by statute, this

Charter or general law.

(e) The salary of the City Attorney shall be fixed by the Mayor and Common

Council, but shall not be less than seventy-five hundred dollars ($7,500.00) per

annum. He/She shall be provided with office space and equipment, and clerical

help by the City.

That is the language of the Charter of the City of San Bernardino, and that gives the incumbent City Attorney some flexibility in operating.   Former City Attorney Ralph H. Prince had one type of style, which I know only from reading old newspaper articles, hearing from former city officials and his son, and old City Attorney opinions.  Current City Attorney Penman has a different style that he calls elected watch dog”.   That style is a political decision, and if the voters do not like the style of the incumbent, they can vote the incumbent out or recall the incumbent.  They can even try to change section 55, which the City Attorney’s opponents unsuccessfully attempted with Measure C in 2010.

Remember that the aspirational principles have not been adopted by any government agency, including the State Bar of California and the California Legislature, is not a fair question.  It is reminiscent of the song lyric: “we thought that we had the answers, it was the questions we had wrong.”  The introduction of these principles were a red herring to spread fear, uncertainty and doubt in the political process  because these voluntary aspirational ethical principles are not “universally adopted” and because they should not apply to a situation like in San Bernardino.  Voters should look to Charter section 55, and to the results of the office in judging the efficacy of an elected city attorney.

The proper method for evaluating the job of an elected city attorney is whether the legal advice given to the City as an entity is sound; whether the elected city attorney has done the things promised in their campaigns, whether the elected city attorney has observed the State Bar’s ethical rules, the dictates of the Business and Professions Code and the case law related to both, whether the elected city attorney is performing the duties given to them by the city’s charter, and whether the city attorney has performed the duties required by state law.

An appointed city attorney is a different creature than an elected city attorney.  An appointed city attorney serves at the whims of elected officials.  In a general law city with a five member council is just two votes from the unemployment line, if a quorum is three.   The appointed city attorney must be political in a different way.  However, it was the appointed city attorneys writing the voluntary aspirational principles, not the elected city attorneys.

Appointed city attorneys often just want to do their job (which is “political” with a small “p”) and avoid Election Politics. They don’t want to be hit up by everyone running for election.  The preamble of the voluntary ethical aspirations states that it exists to “provide guidance to clients and the public on the ethical standards to which city attorneys aspire.”    That means that if Council member A asks the appointed City Attorney to sign her nominating petition or make a donation to the campaign, appointed City Attorney can show her the voluntary aspirational principles and politely say that it is unethical to do so.

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

Michael Reiter, Attorney at Law.

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

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

By Michael Reiter, Attorney at Law

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

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

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

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

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

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

Michael Reiter, Attorney at Law

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

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

By Michael Reiter, Attorney at Law

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

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

 

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

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

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

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

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

 

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

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

 

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

PREAMBLE

            Be it known that,

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

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

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

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

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

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

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

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

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

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

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

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

The Charter of the City of San Bernardino, as amended in 1919, was not amended again until 1921.  I find it amusing that even in 1919, the Preamble was largely a cut-and-paste job.

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

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

Codification of the San Bernardino Municipal Code: An Update

By Michael Reiter, Attorney at Law

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.

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

San Bernardino City Unified School District Campaign Flier Roundup 2

By Michael Reiter, Attorney at Law

Once again, a preface: Why We Try To Keep Partisan Politics Out of These Postings. These posts are provided as a public service  to inform the voting public about who is running and what they are saying.  If the material is received, this site posts and comments about the campaign material.

The San Bernardino City Unified School District fliers have come in an avalanche, so much that it is hard to keep up.

Here is what we have since the last time:

Teresa Parra Craig has sent her second mailer: Here is the front, here is the back.  Her mailer has a Claremont postage permit.

The San Bernardino Teachers Association has sent two mailers: Here is the back and front of the second mailing; here is the front and the back of the first mailing.  They have endorsed Sharon “Bobbie Perong, Juan M. Lopez, Margaret Hill and incumbent Lynda K. Savage.

An organization calling itself “San Bernardino Parents for Great Schools” has sent out a mailer, here is the front and the back. I have no idea who that is, the only thing that turns up on a web search is a firm called JMR Strategic, which claims that San Bernardino Parents for Great Schools is a client.  JMR Strategic is a San Francisco firm that claims to be a “strategic communications firm focused on public affairs, public relations, politics, and media. JMR Strategic excels in challenging situations where government, politics, and media intersect. Every client served receives hands-on strategic communications direction led by senior-level talent.”

Incumbent Lynda K. Savage sent out a second mailer consisting of four color pages; here is page one, two, three and four.

Challenger Juan M. Lopez sent out a flier, here is the front and the back.

Incumbent Elsa K. Valdez sent out a mailer, her first, here is the front, here is the back.

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