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

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 Attorney’s Election on 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

Third James F. Penman for San Bernardino City Attorney November 8, 2011 Mailer

By Michael Reiter, Attorney at Law

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 I get it, this blog posts and comments about the campaign material.   With the dearth (and death) of good reporting coming from our local newspapers, this may be one of the few places to get neutral reporting about the candidates.

The third mailer from the Jim Penman for City Attorney 2011 campaign has arrived, quick on the heels of the first mailer.  This mailer is in color and is four pages long.  Here is page 1, page 2, page 3, and Page 4.

Page one, or the cover of the mailer, has a manila  folder labeled “The People of San Bernardino vs.Politician David McKenna” with the headline in red letters: “UNFIT for Public Office”

The case file theme continues as the reader opens up the mailer.  Again, in red, “The People vs. Politician David McKenna”

The flier continues:

Exhibit A: Financial Misconduct

  • David McKenna was forced to resign as San Bernardino County Public Defender after he was caught illegally spending millions of dollars.
  • McKenna admitted that he “intentionally violated” county rules by spending public monies without authorization because he knew the County “would turn down his requests.

A quote from the Press-Enterprise from January 1999 reads “Public defender to resign today” By David Wert – January 1999:

San Bernardino Public Defender David McKenna under pressure from the Board Supervisors after disclosing that [highlighted in yellow]  he had intentionally violated county spending policies for nearly a decade, [end yellow highlighting] on Thursday notified the county that today will be his last day on the job . . .

“He was violating county policy for years,” said Supervisor Fred Aguiar.  “… it’s imperative that the Board of Supervisors appoint a public defender we have confidence in.  Someone who complies with all the regulations of the county.”

The third City Attorney Jim Penman mailer continues with a quote attributed to the Inland Empire Taxpayers Association which reads “McKenna’s arrogant and unethical behavior as County Public Defender disqualifies him from holding a position of trust in city government.”

Starting on the bottom of page 2 and continuing to page 3 reads:

Exhibit B: Lack of Integrity

  • David McKenna sent an unsolicited email to thousands of San Bernardino voters which falsely accused City Attorney Jim Penman of taking campaign funds from the scandalized Colonies Developers
  • Those Developer monies were actually used to OPPOSE City Attorney Penman who is known for his hard-line stand against political corruption.

There is another quote from the Press-Enterprise titled “McKenna apologized for erroneous email” by Brian Rokos, dated August 2, 2011.

San Bernardino city attorney challenger David McKenna today phoned incumbent Jim Penman to apologize for an email McKenna sent to 6,000 people that inaccurately said Penman’s campaign for city attorney in 2007 received $8,605 in “Colonies scandal payoff money.”

[Yellow highlighting] The money … actually was an independent expenditure … opposing Penman’s election.

The flier continues on page 3 with the text “Exhibit C: Soft on Crime”

  • Since 1983, McKenna has represented criminals as Public Defender and a Private Defense Attorney.
  • McKenna says that, if elected, he will eliminate City Attorney investigators even though it means reducing enforcement measures against street gangs.

Next to the Exhibit C text is a picture of facsimile San Bernardino police badge and shoulder patch.  “‘The last thing San Bernardino needs is a pro-parolee, soft on crime City Attorney like Mr. McKenna.’ Mike Reynolds San Bernardino police Detective.

The third page of the  flier finishes with “The Verdict Is Clear! David McKenna is unfit to serve as our City Attorney.”

The fourth page of the flier says, in red letters “You Just CAN’T Trust Politician McKenna!”:

LIED about his residency                                   ——–>                  FACT: McKenna is a carpetbagger

On his Facebook Page, McKenna says                                             McKenna has not lived in San Bernardino for many years.  He moved from Sun City to San

he has “lived and worked here for decades.”                                 Bernardino on June 24, 2011 just to run for political office here.

LIED about his law experience                       ——–>                   FACT: McKenna defends criminals
McKenna told the Sun newspaper that he                                      The Riverside Law Firm where McKenna works lists him as “Chief Defense Counsel” on its

did most of his legal work on “civil                                                   Corporate website.

litigation and family law.”

LIED about his government record                ——–>              FACT: McKenna ousted for corruption

In his official ballot statement, McKenna                                   McKenna was forced out of his County job for “intentionally” violating county spending rules and

claims he was a “reform leader” and a                                          wasting millions of taxpayer dollars.

“taxpayer’s advocate”.

Certainly, this is a hard-hitting mailer.  It hits the carpetbagger issue, the resignation from the public defender’s office (mentioned in both endorsements of McKenna from the Press-Enterprise and the Sun.  The design is very clean and not too cluttered with facts.   The only other thing expected is tying David McKenna to Mayor Pat Morris, a figure that no one is linking themselves with at this time, except Tobin Brinker.  Perhaps that is for future mailers, perhaps with a quote from David McKenna from the Rotary City Attorney forum wherein he said that he knew nothing about the San Bernardino International Airport except that it was an airport.  That would work with the carpetbagger theme and tying David McKenna to Mayor Patrick Morris.

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