Elected City Attorneys in California versus Appointed City Attorneys in California

By Michael Reiter, Attorney at Law

The City Attorney plays an important role in cities in California.  I worked for an elected City Attorney in the City of San Bernardino for almost five years, from February 2001 until January 2006.  I was a Deputy City Attorney for the City of San Bernardino, one of the few cities in California with an elected City Attorney.  Each City (or City and County) with an elected City Attorney is also a charter city, which modifies the default settings for local government in California set by the Government Code and the California Constitution.

Here are the Cities in California with an elected City Attorney as of today:

Compton

Huntington Beach

Oakland

Los Angeles

San Francisco

San Diego

San Bernardino

Long Beach

Redondo Beach

San Rafael

Chula Vista

Albany has an elected City Attorney, but the voters changed it to an appointive post in November 2010.

Having worked in both appointed city attorney’s offices (City of Redlands, City of Santa Clara), and an elected city attorney’s office, I have some perspective on both.

An elected City Attorney position  is by nature political.  The office is elected, which means that the elected city attorney (or someone appointed as city attorney in an elective City Attorney’s Office) has to be a politician to keep the job.

An appointed City Attorney position is by nature political.   The appointed City Attorney has a constituency as well.  The appointed city attorney has to keep, at the very least, a majority of a Council quorum (which will vary by the size of a City Council) happy.

There are merits and demerits to both systems.  Individual’s opinions on the merits of an elected city attorney versus an appointed city attorney depend on the politics of the City, the person occupying the  position, and the community.

Since this is an election year for at least one of the cities on the list, I will probably be returning to this subject this year.

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

Is Devore in the City of San Bernardino? Or, how to find if San Bernardino County land is incorporated or unicorporated?

By Michael Reiter, Attorney at Law

One of the highest keyword requests regarding the search term “San Bernardino” is finding out what geographic locations are included in a particular jurisdiction. One such search is “Is Devore in the City of San Bernardino?”   Why would someone want to know if a particular place is in a certain jurisdiction?  Here are some reasons:

1. The amount of taxes.  Different locations in California can have different sales tax rates.  At this moment, the City of San Bernardino’s sales tax rate is 9%.  The City of Redlands’ rate is 8.75%  Similarly,the amount of transient occupancy tax.  This is sometimes called a “bed” tax, the amount a hotel or motel collects based on the lodging’s nightly rate.   There are often different rates between cities, and between incorporated areas and unincorporated areas.

2. Liability.  If someone tripped and fell on a sidewalk, or hit a pothole, that person would need to know which entity to file a government claim with, and should the claim be rejected, against which entity to sue in court.  Of course, sometimes it does not involve a government entity, and sometimes it involves more than one entity, so knowing where the public property is located is only part of the inquiry.  Government Code section 835 (discussed briefly here) requires ownership or control of the property.  Just because property is within an entity does not mean it belongs to the city or county.  It could belong to private entities or to another public agency, like a school district, a flood control district, a water agency, or a combination of agencies and private ownership.  When I was a Deputy City Attorney for the City of San Bernardino, I had a case where the location, according to conventional maps, was right on the border of the City of Highland and the City of San Bernardino.  When I was the Assistant City Attorney for the City of Redlands, I had a case that involved a City easement on Redlands Unified School District property, adjacent to private agricultural land.

3. Voting.  Obviously, someone cannot vote if they are not with the corporate limits of the municipality.

4. Business Licenses.

5. Which set of local laws apply.  This is important for land use, zoning and code enforcement law.

So, how do we find out if Devore is within the City of San Bernardino or unincorporated County of San Bernardino.   One good way used to be the website of the Local Agency Formation Commission of San Bernardino, commonly abbreviated as LAFCO (and pronounced Laugh Co).  LAFCOs are county-wide organizations governed by the Cortese-Knox-Hertzberg Local Government Act of 2000, found at Government Code section 56000, et seq.  However, LAFCO’s maps are currently unavailable as of this writing.  San Bernardino County LAFCO can tell you the jurisdiction or jurisdictions of a particular place.  An interested party can call them, or if you need a map, make a California Public Records Act request.  If an interested party makes a Public Records Act request, they should ask for a record.  Such as, “a map that shows the jurisdictional boundaries of x location.”  Remember, the California Public Records Act is for records, not for general information.  Agencies do not have to answer questions, though sometimes it is easier to do so and they will do so in lieu of producing a record.

That means that someone can try to find out by looking in the City of San Bernardino’s website, and the County of San Bernardino’s website.   On the City of San Bernardino’s website, we find the Ward map, which shows the current division of the City for each council member.   Devore is generally thought of being where the 215 and the 15 meet.  You can see on the Ward map that location is not in the City of San Bernardino.  If we are to believe Google Maps, which is far from determinative, it shows the shaded northwest border of the City of San Bernardino  a few parcels away from  Devore Road.

What about the County of San Bernardino?  The County has a Geographical Information Services (GIS) component to its Information Services Department.  I know I have used their mapping applications in the past, but they do not appear to be online at this time.

The short answer is, from my experience as a Deputy City Attorney in the San Bernardino City Attorney’s Office, from having gone to public school with people from Devore, and as a matter of common knowledge, Devore is in unincorporated San Bernardino County.

Copyright 2011 Michael Reiter, Attorney at Law

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

 

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

 

The California Public Records Act and The Future of Journalism in California

By Michael Reiter, Attorney at Law

I attended and graduated from Santa Clara University School of Law.  The School of Law is part of Santa Clara University, which opened in 1851.  It claims to be the oldest operating institution of higher learning in California.  That beats the College of California, the predecessor to the University of California, Berkeley, where I earned my A.B.  Anyway, I receive two alumni magazines from the school .  In the Spring 2011 edition of Santa Clara Magazine, the alumni magazine for the University as a whole, I found an interesting series of articles about the future of journalism in the United States.  I have a personal interest it, because of my family in the industry.  Among the articles is one titled: “Journalism: Broadsheets and Spreadsheets” by Jack Gillum, a database editor at USA Today.  It discusses the use of statistical analysis in analyzing public records for investigative journalism.

The California Public Records Act is an important tool for journalists in California.  In Mr. Gillum’s article, he discusses public records acts requests because of proprietary databases.  In California, a public agency can extend the time to respond from ten days to an additional 14 days in unusual circumstances, such when there is the “need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.”  California Government Code section 6253(c)(4).  Duplication of electronic records are limited to  ” the direct cost of producing a copy of a record in an electronic format.”  California Government Code section 6253.9(a)(2).

However, a requester does have to pay for “the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the
public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction, or programming to produce the record.  California Government Code section 6253.9(b)(1), (2).

The problem encountered by Mr. Gillum in other states may have been based on a provision similar to this one in the California Public Records Act:  “Nothing in this section shall be construed to require the public agency to release an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.  California Government Code section 6253.9(f).   Part of the Legislative History of AB 2799 (2000) explains the reasoning behind subsection F: ” An agency would not be required to release an electronic record in electronic form if its release would
jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.  This limitation was added to the bill in order to
alleviate concerns that electronic records, though  created with taxpayer money, may have been produced using  software designed specifically for the agency. This bill
would give the agency the flexibility to refuse to  release a requested record in electronic format, if such a release would mean that the software would also have to
be released. Even without the software problem, though, an electronic record containing the data may be deciphered and the software program reconstructed (see below).

The agency also may refuse to provide the information in electronic format if the electronic record, when transmitted or provided to a requester, could be altered
and then retransmitted, thus rendering the original record vulnerable.

These two concerns were registered by opponents of SB  1065 last year. Thus, AB 2799 includes a provision that gives the public agency the option not to provide the
information if disclosing it would jeopardize the integrity or security of the system.”  California Senate Floor Analysis, Pages 4-5, August 19, 2000.   As of today, I have not seen a reported court decision analyzing California Government Code section 6253.9.

Anyway, the article in Santa Clara Magazine is interesting, and I recommend reading it.  When I was Assistant City Attorney in the City of Redlands I assisted journalists with their California Public Records Act requests.  Today, as an attorney in private practice, I help journalists  with their California Public Records Acts requests.  In today’s fiscal environment, journalists do not have the same access to attorneys as when newspapers had more revenue, so it is important to help local journalists in fulfilling their mission of investigatory journalism.

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

California Public Records Act, How and Where to Make a Request in San Bernardino County and Riverside County

By Michael Reiter, Attorney at Law

The California Public Records Act is an invaluable tool for individuals, traditional and new media,  public interest groups, non-profits, business entities, and even lawyers and political groups to find out what local government is doing.  This first post has to do with a very brief overview of the Act, and how to make a Public Records Act request.  Private Attorneys especially do not use the Act efficiently, much to the delight of City Attorneys and much to the detriment of their clients.

I have handled Public Records Act Requests on behalf of local agencies, and I have made Public Records Act Requests to local agencies, so I have a good perspective about how the Act is handled on both sides of the counter.  Having an attorney knowledgeable about the California Public Records Act is important if a client is involved in a case against a City, County, or other local government agency.

The Public Records Act is found in the California Government Code.  A Requester can find the California Government Code here.  The version found here is unannotated.  If a Requester wants to see an annotated code, it can be found at most public libraries and law libraries.  The annotated version gives case law and secondary source references.  The Act is codified at Government Code, Title 1 “General”, Division 7 “Miscellaneous,” Chapter 3.5 “Inspection of Public Records”, Article 1, “General Provisions” and Article 2 “Other Exemptions From Disclosure.”   If a Requester is searching manually, the Act is found in Government Code section 6250 et seq.  [“Et seq.” is legal jargon from the Latin “et sequentia” meaning “and following.”  It is shorthand to tell a court, or others, the general location of an some amount of primary or secondary law.]

The California Legislature, in enacting the Act, found and declared  “that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in” California.  Government Code section 6250.

While, there are generally two rights, to inspect and/or copy public records, this post will focus on how to make the request.

How and When to make a request to a local government agency in San Bernardino County and Riverside County:

The Act requires that records not subject to an exemption are to be made available “upon a request”  Government Code section 6253(b).  The Court of Appeal for the Second District of California found that the “California Public Records Act plainly does not require a written request.”  Los Angeles Times v. Alameda Corridor Transp. Authority (2001) 88 Cal.App. 4th 1381, 1392.

What does this mean, practically?  A Requester can ask the local government agency in person, or over the phone, to inspect or copy records.  However, the practical thing to do is to put it in writing so that there is a record of the request.  Local governments are collections of individuals, and if the individual employed by the government does not understand the request, or does not write the request down correctly, a Requester may not get to inspect the records in a timely fashion.  A Requester’s best practice is to put the Public Record Act request in writing and date it.  A Requester does not have to use a form provided by the local government agency, but sometimes it is easier to use their form.

Where and to whom should the Request be made?  Though the Act does not specify, local government agencies in Riverside and San Bernardino County usually have Departments that are responsible for responding to routine requests, such as for copies of ordinances or minutes.   In an incorporated city or town, the Requester can usually request the documents from the City Clerk, and it should be routed within the City to the right department if it is not the City Clerk .  In cities with in-house City Attorney’s Offices, such as the City of San Bernardino and the City of Riverside, a Requester can request the documents from the City Attorney.  Likewise, it will be routed to the correct department.

However, the best practice is to request from the specific department that has the records.  If the Requester is ling with a specific department, such as Planning or Code Enforcement, the Requester can make the request directly to the department who is likely to handle the request.  If the Requester is asking for records from different departments, the Requester might want to make the request to the City Manager or City Administrator.  A Requester should feel free to ask someone in the particular city, town or county.  Most local government entities understand their responsibilities under the Act, and want to help the public.  Some do not.

A later discussion with examine how to make a reasonably described record request.

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