The San Bernardino City Clerk’s Election Results and The Recount Process in San Bernardino County

By Michael Reiter, Attorney at Law

The semi-official results in yesterday’s General Municipal Election for City of San Bernardino City Clerk are that Gigi Hanna won by two votes:

Last Updated: February 7, 2012 9:20 PM
Registration & Turnout
71,881 Voters
Vote Count Percent
Precinct Turnout 12,192 16.96%
Total 12,192 16.96%
City Clerk, City of San Bernardino
170/170 100.00%
Vote Count Percent
GEORGEANN ”GIGI” HANNA 6,066 50.01%
AMELIA SANCHEZ-LOPEZ 6,064 49.99%
Total 12,130 100.00%

Close elections sometimes involve recounts. It can involve a closer look to see if ballots were correctly counted by machines and if any votes counted were illegal or improperly voted.

California Elections Code section 15620 et seq. governs recounts requested by voters.  Any voter may file a request for a recount pursuant to Elections Code section 15620.  The request must be filed no later than five days after the completion of the official canvass.  The completion of the canvass occurs when the elections official signs the Certification of  Election Results.  Elections Code section 15620.

The request must be in writing, specify the contest to be recounted, and state on behalf of which candidate (in this case), slate of electors, or position on a measure it is filed.  Elections Code section 15620.  The request may specify the order in which precincts shall be recounted, it may specify the method of counting to be used, and any other relevant material to be examined.  Elections Code sections 15622, 15627, 15630.

If it is not a statewide measure, as this is not, the request needs to be filed with the county election official responsible for conducting the election.  However, the request needs to be filed with the City Clerk if it is a city election or if the city has not consolidated with the County.  Elections Code section 15620.

The election official will post a notice stating the date and place of the recount at least one day before the recount, and the candidates will be notified by overnight mail or personally.  Elections Code section 15628.

A recount is open to the public, and must start no later than seven days following the receipt of the request and shall be continued daily, except for Saturdays, Sundays and Holidays, for no less than six hours a day until completed.  Elections Code sections 15626, 15629.  A manual recount must be conducted under the supervision of the election official by recount boards, (each consisting of four San Bernardino County voters), appointed by the election official.  Elections Code section 15625.  Every vote in every precinct must be recounted, or the results are null and void, and if a different candidate wins, the results of the official canvass will be changed.  Elections Code section 15632.  A copy of the results shall be posted conspicuously in the office of the election official.  Elections Code section 15633.

There is a cost associated with a recount, and the amount for this San Bernardino City Clerk General Municipal Election recount, should it occur, will depend on a variety of factors.  The election official determines the amount of the deposit necessary to cover the costs of the recount for each day.  The voter filling the request must deposit, before the start of the recount and at the beginning of each day , the amounts to cover the cost of each day.  If the results are reversed, the deposit must be returned.  Elections Code section 15624.

How much will the recount be, if one is requested?  San Bernardino County does not give the typical fees, but some other California Counties do (information was obtained from the Internet and is not necessarily reliable or up-to-date:

Santa Cruz:

COST BREAKDOWN FOR MANUAL TALLY:

  • 1 Board $240 – Supervisor Pay $325 – Cost per day $565
  • 2 Boards $480 – Supervisor Pay $500 – Cost per day $980
  • 3 Boards $720 – Supervisor Pay $675 – Cost per day $1395

Sutter:

COST AND PAYMENT
Manual Tally Recount Fees
Number of Boards Fee Per Day
1 $969.00
2 $1,674.00
3 $2,379.00

Other Costs
Item Fee
Legal Notices Actual Cost
Security Actual Cost
Computer Support $106.00/hr
Materials Actual Cost
Copy Charges Per Code/Resolution
Postage Actual Cost
County Counsel $112.00/hr
Accounting $56.57/hr

There is also an automatic manual recount established by Election Code section 15360.  By law, a random sample of ballots from every election must be recounted manually to verify the computer count.  A minimum of one percent of all votes cast is included in the process.  This must occur before the election is certified.  The automatic manual recount is open to the public.  A court explained it like this:

“1 percent manual tally” is a procedure used in California to test whether there are any discrepancies between the electronic record generated by a voting machine and what is essentially a manual audit of that electronic record. Essentially, after each election, the “official conducting the election” is to conduct a “public manual tally of the ballots tabulated” by any voting machines “cast in 1 percent of the precincts chosen at random by the elections official.” (§ 15360.)  Nguyen v. Nguyen (2008) 158 Cal.App.4th 1636, 1643.

There are court challenges available after the recount, but since the recount in this case is mere speculation, they will be discussed at a later time.

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

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

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

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

The Absolute Last City Attorney James F. Penman For City Attorney Mailer for the November 8, 2011 Election

By Michael Reiter, Attorney at Law

Now that most of the election is over, it is time to refocus this blog on law.  So, let me start with this election campaign maxim from California Civil Code section 3357:

Superfluity does not vitiate

On that note, the absolute last campaign mail for the November 8, 2011 election arrived on Election Day, the ninth mailer from San Bernardino City Attorney James F. Penman.  It is an oversized postcard mailer printed in black and white.  On the front it says:

“We all know City Attorney Jim Penman personally, we have all worked with him professionally for many years and we all endorse him for re-election as City Attorney.

If Jim was ‘divisive, disruptive, intimidating, a bully and a liar’ (as his opponents falsely claim) NONE of us would be endorsing him.

But, we are all proud to endorse him.

He IS the City Attorney San Bernardino needs for the next four years!”

 

Judith Valles                              Tom Minor                                            Evlyn Wilcox

Mayor (1998-2006)             Mayor (1993-1998)                              Mayor (1985-1989)

Honorable Paul Bryant                    Honorable Stanley W. Hodge                    Honorable John Wade

Superior Court Judge (ret.)            Superior Court Judge (ret.)                       Superior Court Judge (ret.)

Chief B. Warren Cocke (ret).                                                                                  Chief Dan Robbins (ret.)

San Bernardino Police Dept.                                                                                 San Bernardino Police Dept.

Chief Ben Gonzales  (ret.)                                                                                                    Chief Lee Dean (ret.)

San Bernardino Police Dept.                                                                                             San Bernardino Police Dept.

P.S. Jim does NOT make over $200,000 a year as his opponents claim.  He is one of the lowest paid full-time City Attorneys in the state and he voluntarily turned down his last 6 raises.

The back of the mailer has a San Bernardino Police Officers Association return address, but also says paid for by Jim Penman for City Attorney 2011

Responding to a David McKenna charge, the back of the mailer says: “Jim Penman was never charged, convicted or pled guilty to ANY Crime.  McKenna’s campaign is trying to deceive you.” The Honorable Craig S. Kamansky ~ Superior Court Judge (ret.)

Under a portrait of City Attorney Jim Penman, the mailer says “City Attorney Jim Penman ‘A Tough Prosecutor.”   Next to the photograph is a quote from retired Superior Court Judge Hodge: “Penman is a tough prosecutor, not a bully.  Those who say differently may have something to hide.  Honest government officials have nothing to fear from Jim Penman but dishonest ones should.”

To the left is this blurb from the San Bernardino Sun:

Penman cleared in illegal contributions probe

The District Attorney’s Office has informed City Attorney James F. Penman that “there is no credible evidence” that he received an illegal gift of $5000.  Investigators were looking into whether Penman took the payment for Attorney’s fees related to his court challenge of language in pro-Measure C ballot arguments, and as a bribe not to sign off on supporting the proposed downtown Regal movie theater.  In a letter to Penman, Deputy District Attorney Michael Abney said “we are closing our files” on this matter. [SB Sun ~ 9-23-11]  . . . but the last minute lies keep coming.

I never saw the mailer or the talking point, or even the newspaper article until receiving this mailer, so I don’t have any details on the allegation.

This post is cross-posted on the new San Bernardino Politics Blog: SBDpolitics.com

Address :300 E. State St. Suite 517

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

Last Minute Mailers from Amelia Sanchez-Lopez and City Attorney James F. “Jim” Penman

By Michael Reiter, Attorney at Law

First, a disclaimer:  this site is neutral as explained in the post “Why We Try To Keep Partisan Politics Out of These Postings”  These postings are provided as a community service, and not to push a particular candidate, or slate of candidates.

These are the seventh and eighth mailers (not including slate mailers) that I have seen from incumbent City Attorney Jim Penman. Both say they they were paid for by Jim Penman for City Attorney 2011, though one has a return address for Amelia Sanchez Lopez for San Bernardino City Clerk 2011.

The first of the two mailers is a black and white mailer with the Amelia Sanchez Lopez for San Bernardino City Clerk 2o11 return address on the back.  The front says:

Candidate David McKenna joins the

Republican Assault

against Working Families!

ELECTION WARNING!

MORE LAYOFFS

Candidate David McKenna says he supports more layoffs for city workers.

Source: San Bernardino Sun – Sept. 28, 2011

UNFAIR BUDGET CUTS

Candidate David McKenna supports slashing retirement and other benefits for employees who have already been forced to accept furloughs and pay cuts. [Source: Press Enterprise Interview – Oct. 13, 2011]

“Mr. McKenna has betrayed local Democrats.

Please join the working families of the AFL-CIO, the Assoc. of Colton Educators, and the San Bernardino Public Employees Assoc. in Voting for Jim Penman on November 8th.”

~ Laurie Stalnaker, Executive Secretary/Treasurer

Central Labor Council, AFL-CIO of the San Bernardino and Riverside Counties.

To contact Jim Call (909) 882-8986 or

Email friendsopenman@yahoo.com.

The second column, taking up one quarter of the right side of the front of the mailer says:

City Attorney

Jim Penman

Fights For

Working Families!

Proudly Endorsed by

Labor and Democrats

  • Central Labor Council-AFL-CIO
  • San Bernardino Public Employees Assoc.
  • Association of Colton Educators
  • San Bernardino/Riverside Building Trades & Construction Workers
  • San Bernardino Police Officers Assoc.
  • Former Mayor Judith Valles

~ Partial List

The back of the mailer features a picture of City Clerk candidate Amelia Sanchez-Lopez.  The copy says:

Amelia Sanchez Lopez

Our Democratic Choice for City Clerk!

Endorsed by:

The AFL-CIO Central Labor Council

Former Mayor Judith Valles
Democrat

The San Bernardino County Democratic Central Committee

Congressman Joe Baca

Democrat

To Contact Amelia Sanchez-Lopez call (909) 882-7085

Email: friendsofamelialopez@yahoo.com

On the front of the second of the two last-minute mailers is a letter:

Dear Fellow Citizen, [with pictures of Judith Valles, Tom Minor, and Evlyn Wilcox]
We were all honored to serve as your Mayor.
We love our community and want the best for San Bernardino’s future.
Today we are putting aside our personal political differences and joining together
in support of City Attorney Jim Penman.
Jim Penman is truly dedicated to the people of San Bernardino. He has spent his
entire adult life working to make our city a better place as a former Executive
Director of the Horne of Neighborly Service, as a firefighter, Police Commission
Chairperson, Civil Service Board member, Human Relations Commissioner,
Scout Master (Boy Scout Troop #21), PTA treasurer, as an active community
volunteer for four decades, and as our City Attorney.
Sometimes we agreed with Jim, sometimes we didn’t, but we have never doubted
his outstanding professional abilities or his sincere commitment to our
community. His office has always won the vast majority of lawsuits filed against
our City, saving taxpayers millions of dollars.
As Mayors, we worked well with the City Attorney’s office under Jim Penman’s
leadership. We appreciated his integrity and willingness to stand up for his
principles.
Jim has brought innovative leadership to his office through the use of
Administrative Civil Penalties against absentee landlords and his use of legal
injunctions to combat gang crime. Jim’s record and his close relationships with
many of our police chiefs, has earned Jim the endorsement of former Police Chief~
B. Warren Cocke and Ben Gonzales, Lee Dean and Dan Robbins, all of whom
worked closely with Jim when they headed our Police Department.
please join us in supporting City Attorney Jim Penman. He is the best choice for
San Bernardino’s future.
Judith Valles
Mayor (1993-1998)
Tom Minor
Mayor (1998-2006)
Evlyn Wilcox
Mayor (1985-1989)

The front concludes with “On NOV. 8th, RE-ELECT City Attorney Jim Penman.”

The back of the mailer reads, superimposed on a picture of a gavel:

Who do all
3 Former Mayors,  4 Police Chiefs (ret.) and
5 Superior Court J (ret.) unanimously endorse?
“Between the two candidates for City Attorney we choose Jim Penman, the
better choice, beyond a reasonable doubt. He brings competence,
integrity and commitment to
the City Attorney’s office.”
Craig S. Kamansky
Superior Court Judge (ret.)

Stanley W. Hodge

Superior Court Judge (ret.)

John Wade

Superior Court Judge (ret.)
Paul Bryant
Superior Court Judge (ret.)

Robert W. Fawke

Superior Court Judge (ret.)

Copyright 2011 Michael Reiter, Attorney at Law.

Address : 300 E. State St. Suite 517

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

Who Will Win the San Bernardino City Clerk’s Election on Tuesday, November 8, 2011?

New City Attorney James F. Penman / San Bernardino Police Officers Association Mailer

By Michael Reiter, Attorney at Law

First, a disclaimer:  this site is neutral as explained in the post “Why We Try To Keep Partisan Politics Out of These Postings”  These postings are provided as a community service, and not to push a particular candidate, or slate of candidates.

This is the sixth mailer that I have seen from incumbent City Attorney Jim Penman.  The front of the mailer is glossy and in color  On the front, the headline says in blue letters on a red background “FBI Raids San Bernardino Airport!”  In the top middle of the front is a picture of FBI agents loading seized files at the San Bernardino Airport.  Flanking the photograph are these words: “The County Grand Jury Report (June 20, 2011) found specific irregularities (GJR pg. 2-29) and “a clear conflict of interest” (GJR pg. 2-31) with contracts awarded to a federally “convicted felon” at the San Bernardino Airport. [Press Enterprise – Sept. 22, 2011][.]”

It continues in the next paragraph:

“Mayor Morris, as President of the Airport Authority, is the “man in charge” there, as he is at City Hall.”
On the other side of the photograph of the FBI agents loading seized files at the San Bernardino Airport is this paragraph “San Bernardino Mayor Patrick Morris is the only elected official named in the federal search warrants served at the airport on Sept. 21, 2011.  The warrants seek “evidence of bribery, theft, fraud, money laundering and more”. [Source: Press Enterprise, 9-22-11.]”

Below the picture and the two sets of text flaking it are blue letters that say “City Attorney Investigators are also investigating charges of irregularities in contracts at City Hall.  The same City officials who are in charge at the airport are also in charge at City Hall.”

Below that paragraph is a paragraph in white text on a black background:
“‘For the City to move forward we must investigate and, if verified, expose any mismanagement or corruption at City Hall similar to that now being investigated by the FBI at the San Bernardino airport.  The people of San Bernardino deserve honest city government.’ ~City Attorney Jim Penman”

Below that is a San Bernardino Police Officers Association badge with the text: “San Bernardino Police Officers Association Members Say: ‘On Election Day, Let Jim Penman finish the City Hall Investigations.”

The back of the mailer has the Police Officers Logo and their address, and is in black and white.

The headline of the back of the mailer says “Question: Why is Mr. McKenna running for City Attorney?  Answer: To Stop City Attorney Investigations into charges of contract irregularities at City Hall.”

Below the headline is a quote from Mayor Patrick Morris from May 10, 2011 in the State of the City Speech “Corruption and scandals are not our concerns”.  To the right is a quote form challenger David McKenna and a picture of David McKenna.  It says “Corruption is not a priority for me.” with this legend below “[David McKenna, Oct. 11, 2011, Rotary Club debate.]”

Below the Mayor Patrick Morris quote of “Corruption and scandals are not our concerns” are these quotes:

“County Public Defender David McKenna, under pressure from the Board of Supervisors . . . after disclosing that he had intentionally violated County spending policies for nearly a decade . . .” resigned today.

“. . .  he was violating county policies for years . . . it’s imperative the Board . . . appoint a public defender that we have confidence in.  Someone who complies with all the regulations of the County,” said Supervisor Fred Aguiar. [Source – Press Enterprise, July 2, 1999]

In the middle of the back side is a question to the reader: “Is McKenna a responsible public servant and citizen? (You decide – see left and below.)  Left, refers to the Press-Enterprise article about David McKenna’s resignation as San Bernardino County Public Defender.  Below the rhetorical question is this quote: “Until moving to San Bernardino this year, McKenna lived in Riverside County for the past five years without registering to vote.”   This is a quote from the Riverside Press Enterprise, October 23, 2011.

Finally, below the picture of David McKenna, which for political  attack ads is not a bad photo at all, says “. . . (if elected) I will eliminate the City Attorney (corruption) Investigators”.   The mailer attributes the quote to David McKenna at the October 11, 2011 Rotary Club debate.  The picture of David McKenna also has the wording “Paid for by Jim Penman for City Attorney 2011” on it.

What City Attorney Jim Penman campaign themes have been addressed in this, the sixth mailer?  City Attorney Penman as elected watchdog.  David McKenna as carpetbagger.  David McKenna as Mayor Morris surrogate.  Corruption.  Corruption at the San Bernardino International Airport.  David McKenna’s past as an appointed official.

Earlier, there were posts on the Rotary Club of San Bernardino City Attorney Forum and the San Bernardino Chamber of Commerce City Attorney Forum.

Address : 300 E. State St. Suite 517

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

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.

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