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

Who Will Win the City of San Bernardino 5th Ward Council Election on November 8, 2011?

Anecdotal Evidence: More Larry Lee Signs Than Chas Kelley Signs Along Kendall Drive

By Michael Reiter, Attorney at Law.

While traveling north on Kendall Drive and also on Sheridan, I saw more Larry A. Lee yard signs then Chas Kelley signs. I am not sure that means anything, other than maybe Larry Lee had a head start on walking.

I am not sure of the genesis of Pastor Lee’s run, though there are a few scant clues on a Larry Lee door hanger that has been provided to me. The door hanger says, on the front: “Better things are yet to come. Better things are still to be done in the city. join me in making San Bernardino a place people want to move to. Help me make San Bernardino a place people are proud to be from and not ashamed of. It’s time for a change”

The back says “Larry Lee understands: The seriousness of the problems we face. The stewardship of our city’s resources and affairs. The necessity of interdependence.

“Larry Lee will: Represent the entire 5th ward and city passionately. Work hard on issues of jobs and the economy. Maintain and help to find ways to improve the safety and protection of our residents. Not support any new taxes and will fight to lower them, when and wherever possible. Larry Lee is a community servant at will lead with courage, veracity and fortitude.”

This is a “get to know you” piece, and there are no explicit swipes at Council Member Kelley. If I were to guess the motives present, I would focus on “It’s time for a change” and Pastor Lee’s understanding of the ” necessity of interdependence” suggesting those times when Council Member Kelley has voted differently then the current Council majority.

In other non- news, I also saw the first Esther Jimenez for City Clerk yard sign.

Contact Information for City of San Bernardino Candidates Election 2011

By Michael Reiter, Attorney at Law

[Updated October 18, 2011]

The City of San Bernardino’s municipal election in November 2011  is very important to the people of San Bernardino.  Traditionally, there has not been a lot of quality information, and as local news-gathering diminishes, I thought, as a public service, I could provide a list of contact information.  I was frustrated a few years ago in a “Pick 4” election for a school board.  I knew two of my votes, but rather than undervote, or randomly vote, I tried to find information about the other people running for office.  It was very difficult to do.  In our online age, that should no longer be an issue.  In that spirit, here is the contact information that I have so far as of October 18, 2011 for the November 8, 2011 election.  I am including the contested races.  The phone numbers and email are from the public internet, usually the campaign website or the public Facebook Info Page.   If any candidate wants any of this information changed, updated or removed, I will do so upon contact by the campaign.  Once again, the order is the same as on the San Bernardino Registrar of Voters Candidate list :

City of San Bernardino Third Ward

Tobin Brinker:  Website, Facebook. As of the morning of October 7 2011, there is no phone number on the official campaign website,  Email.

John Valdivia:  WebsiteFacebook,  Phone number: (877) 825–3270, Email.

City of San Bernardino Fifth Ward

Chas Kelley: Friends of Chas Kelley sent a letter with a magnet.  The magnet says, among other things, “Visit Chas on Facebook,” but I’m still unable to find a Facebook profile for Council Member Kelley as of October 7, 2011.  The magnet also gives a Phone Number: (909) 648-3506 and an Email.

Larry A. Lee:  Website, FacebookEmail.

City of San Bernardino Seventh Ward

Wendy McCammack does not appear to have an online campaign presence at this time.  I was unable to locate an email address nor a phone number as of October 18, 2011

Jim Mulvihill: Facebook,  Phone Number (from public Facebook Page): 909-886-1333, Email.

City of San Bernardino City Clerk

Georgeann “Gigi” Hanna  FacebookWebsite, Phone Number from Public Facebook Page: 909-709-2019, Email.

Peggi Hazlett:  Facebook, as of October 6, 2011, no other information.

Esther Jimenez:  Facebook, Email.

Amelia Sanchez-Lopez:  WebsiteFacebook, Phone number (from Jim Penman’s mailer #2) (909) 882-7085,  Email.

William A. Valle: Website,  Facebook, Phone Number from Public Facebook Page: (909) 486-5636, Email.

City Attorney

David L. McKenna:  Website, Facebook, Phone Number from Campaign Flier and Campaign Website: (909) 264-9021, Email.

James F. “Jim” Penman: Website (as of 10/18/2011, not yet functional, but mentioned in second mailer), Phone Number from Mailers: (909) 882-8986, Email.

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

Signs of Fall: Election Billboards and Campaign Signs Popping Up in San Bernardino for Election 2011

By Michael Reiter, Attorney at Law

Chas Kelley, before he was elected to the Council, told a story of how he kept calling a local billboard company to make sure that he would be able to rent the billboards.  Apparently, he still is in contact with the billboard company because the Chas Kelley billboard, appropriately in Kelly green, is up on Kendall Drive.  There is also a Gigi Hanna lawn sign on the Habitat for Humanity house  built on E Street, and a Larry Lee yard sign further south on E Street, including a website address on the sign.

Let’s look at the state of affairs in the 2011 election so far (taken, in the same order, and same ballot titles as the San Bernardino Registrar of Voters Candidate list :

The candidates

Third Ward:

Tobin Brinker, Teacher/Councilman

John Valdivia, Advertising Representative

Fifth Ward

Chas A. Kelley, City Councilman, 5th Ward

Larry A. Lee, Minister/Sr. Pastor

Sixth Ward

Rikke Van Johnson

Seventh Ward

Wendy J. McCammack, Councilwoman/Business Owner

Jim Mulvihill, University Professor/Businessman

City Clerk

Georgeann “Gigi” Hanna, Communications/Administration Manager

Peggi Hazlett, Assistant to Mayor

Esther Jimenez, Senior Legislative Assistant

Amelia Sanchez-Lopez, Health Education Specialist

William A. Valle, Maintenance Clerk

City Attorney

David L. McKenna, Civil Litigation Attorney

James F. “Jim” Penman

San Bernardino City Attorney

City Treasurer

David C. Kennedy
Where are we in this campaign?  It’s just getting started.  As I related in the earlier discussion regarding the City Clerk’s race; local candidates wait until after Labor Day, but can be punished if they wait too long because of the effect of vote by mail.  According to the Registrar, the first day that Vote by Mail ballots can be mailed is October 11, 2011.  Similarly, early voting at the Registrar of Voters begins on October 11, 2011, a little than a month before the elections.  This is the “get to know you” part of the campaign, where candidates extoll their virtues rather than attack their opponent (the City Attorney’s race notwithstanding).

So, which candidates are on the ball and have working internet sites (that can be found at this date and time)?

As of the morning of September 13, 2011, less than two months from the election, in the same Registrar of Voters order:

City of San Bernardino Third Ward

These are the most notable sites of all the elections:

Third Ward council member Tobin Brinker has a functional, up-to-date website, and a Facebook page.  The main site has a blog.  There are links to YouTube endorsement videos, which is a cost-effective use of video.

Third Ward challenger John Valdivia has a website, too.  And a Facebook page and a Twitter feed.  They are not quite as polished as council member Brinker’s sites, but they are full of enthusiasm that any challenger could use as a model.

City of San Bernardino Fifth Ward

Fifth Ward council member Chas Kelley does not appear to have a website up and running at this moment.

Fifth Ward challenger Larry A. Lee has a website and a more active Facebook page.

City of San Bernardino Sixth Ward

Rikke Van Johnson is running unopposed.  Council member Johnson does have a personal Facebook page.  There is a link to website on the page, but it is currently a dead link.

City of San Bernardino Seventh Ward

Seventh Ward Council member Wendy McCammack does not appear to have an online presence at this time.

Perennial Seventh Ward challenger Jim Mulvihill has a Facebook page, but does not appear to have a website.

City of San Bernardino City Clerk

This is a rare open race with no incumbent.

City Clerk candidate Georgeann “Gigi” Hanna.  It took a little searching, but Ms. Hanna does have a Facebook page.

City Clerk candidate Peggi Hazlett, does not appear to have a web presence at the moment beyond a LinkedIn page that is not related to her bid.

City Clerk candidate Esther Jimenez has a Facebook page.  She does not appear to have a website.

City Clerk candidate Amelia Sanchez-Lopez has a brochure-style website.  Ms. Sanchez-Lopez does not appear to have a Facebook page.

City Clerk candidate William A. Valle has a Facebook page.  He also has a website.

City Attorney

City Attorney challenger David L. McKenna has a very simple website.  He may have a Facebook page, but I was unable to find it.

San Bernardino City Attorney James F. “Jim” Penman does have a website, that still features his last Mayoral campaign.

City Treasurer

City Treasurer David C. Kennedy is unchallenged, and virtually absent from the Internet.

The most interesting information that I have found on the web is the Third Ward race.  I think the other candidates in contested elections should look at the two contenders in that race for ideas about what to do.

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