By Michael Reiter, Attorney at Law.
First, a little history to explain how we arrived at the November 8, 2011 City Attorney election. The first elected San Bernardino City Attorney was elected in 1907. Ralph E. Swing, later California State Senator and namesake of Swing Auditorium, was the first elected City Attorney, but before he was elected, he was already the appointed City Attorney. Even though the 1905 Charter took effect in 1905, the first City Attorney election was not held until April 1907:
Sec. 13 . . . The present trustees of the third and fifth wards shall hold office during their present term, and shall act as members of the common council from said third and fifth wards until the second Monday of May, 1907. The city marshal, city attorney, city clerk, treasurer, assessor, police judge and recorder shall also continue to hold office and act as such under this charter, until said second Monday of May, 1907.
Sec. 14. There shall be elected at a general municipal election to be held on the second Monday of April, 1907, and every fourth year thereafter, two members of the common council, one each from the third and fifth wards, who shall be elected by the qualified electors of their respective wards; a mayor, city attorney, city clerk and police judge. Charter of the City of San Bernardino, 1905
That’s why the Council races for Third and Fifth Wards are held together with the City Attorney, City Clerk, and City Treasurer elections. When the Sixth and Seventh Wards were added, they were added to the City Attorney, City Clerk, City Treasurer, Third Ward and Fifth Ward elections. The Mayor was originally elected every two years, but the Charter was subsequently amended.
Since the first City Attorney election 104 years ago, there have been less than ten occupants of the office. Seven men, Ralph E. Swing (one term), Charles Allison (one term), William Guthrie (four terms), Fred A. Wilson (one term) Howard Reginald Griffin (four terms), Waldo Willhoft (one term), William A. Flory (one term) were the elected City Attorney for the first 52 years. For the next 52 years, there have been two: Ralph H. Prince (1959 to 1987 (seven terms)) and James F. Penman (1987 to present (six terms)). Since 1959, there has only been one transition, that of Ralph Prince to Jim Penman.
The minutes of the Mayor and Common Council meeting of May 11, 1987 give a hint of the change over from Ralph Prince to Jim Penman:
TRANSITION PLAN FOR CITY ATTORNEY’S OFFICE – CONTINUED FROM MAY 11, 1987 [which is probably a misprint]
This is the time and place continued to for discussion on a Transition Plan for the City Attorney’s Office, to insure that there will be a smooth transition to the new elected City Attorney.
City Attorney Prince stated that he and Mr. Penman had met and worked out an agreement which would permit Mr. Penman to act as Counsel to the City Attorney in order that he could be present at Closed Session.
City Attorney Prince explained to the Council why he had not prepared a transition plan in writing.
City Attorney Elect Penman stated he was happy about being able to go into Closed Sessions, and that he had found a replacement for the Administrative Operations Supervisor. He will have Dolores Delgado as Executive Secretary and Margaret Scroggin As [sic] Administrative Operations Supervisor.
. . .City Attorney Elect Penman answered questions regarding his progress on the General Plan case stating that he had met with Deputy City Attorney Cynthia Grace on Tuesday, and that he was trying to get up to speed. He presented concerns about the wording in the Interim Ordinance where the legal description of the boundaries are given.
The Council stressed the importance of two priorities: The General Plan Lawsuit; and the agreement for the new, uncompleted downtown hotel located on “E” Street between Second and Court Streets.
City Attorney Elect Penman was encouraged to meet with former Sr. Assistant City Attorney Briggs to discuss the hotel agreement.
Mr. Penman state that he had 80 cases remaining from his private practice that he must reassign within the next three weeks.
City Attorney Prince stated that presently there are 26 open cases in the City Attorney’s Office and they are all assigned out to attorneys in the office and outside counsel.
City Attorney Elect Penman explained to the Council why it would have been better if he and Mr. Prince had started the transition sooner.
City Attorney Elect Penman spoke regarding employee changes in the City Attorney’s Office.
It was the general consensus of the Council [that] the transition is as efficient as possible, based on the circumstances.
You can sense from the minutes that there was tension in the transition from Ralph H. Prince to Jim Penman. What would happen if David McKenna, today’s challenger defeats James F. Penman, today’s incumbent?
The City Attorney’s staff is not within the City of San Bernardino’s Civil Service system. They serve at the pleasure of the City Attorney. That means that upon an regime change, the new City Attorney can fire everyone on staff and hand-pick his own staff. New appointments are contingent upon approval by the Mayor and Common Council. I was hired as a Deputy City Attorney about a month after the Valente Duran letter, which was a low point of Jim Penman/Council relations. However, there was no opposition to my appointment.
At the very least, I would expect Mr. McKenna to replace the Senior Assistant City Attorneys and the Administrative Operations Supervisor and Executive Secretary. 1987 holds some lessons, as I believe then-Deputy City Attorney John Wilson made the transition from Ralph Prince to Jim Penman. Other than that, it is my understanding that there were no long-term hold-overs between the two administrations. I think as a matter of practicality, it would be difficult to fire and hire the entire staff all at once. Common decency would require the lower level staff a chance to find new jobs or the chance to interview for their jobs. However, the law does not require the new City Attorney to keep the existing staff, unless the dismissals were against public policy.
In the first debate, David McKenna said he would get rid of the City Attorney investigators, and have larger case-loads for in-house City Attorneys, hinted that there were too many secretaries, try some cases himself, and still send some cases to outside-counsel. He said at the second debate that the City could do with one Deputy City Attorney prosecuting code enforcement versus two. He, like Marianne Milligan before him, suggests that an era of good feelings would follow. However, there were disputes between the City Attorney and the Mayor before Jim Penman became City Attorney. If David McKenna were to win, and ally himself with Mayor Patrick Morris, I would expect the previously pro-Penman forces to at least be cool towards David McKenna.
You can read my post which explains my current position on who will likely win the 2011 San Bernardino City Attorney’s Election.
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.
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Michael Reiter, Municipal Attorney with Milligan, Attorney, Beswick, Levine & Knox LLP Blog 
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