An Update: The Notices of Intention to Circulate Recall Petitions in the Proposed San Bernardino Recall 2013

I’m not sure why this was not posted at the time, but for historical interest, here is a post that supposed to appear in 2013.

By Michael Reiter, Attorney at Law

San Bernardino Residents For Responsible Government, the political action committee behind the proposed recall,  contacted me today regarding the last post on the Notices of Intention to Circulate Recall Petitions in the Proposed San Bernardino Recall for November 5, 2013.

The Petitions were drafted by Michael L. Allan, a Pasadena attorney.  The decision to use process servers was also his decision.  The rest of the petitions will be released to the public on Monday, as listed on their website.  They say they have not filed the petitions against Wendy McCammack and Rikke Van Johnson yet. San Bernardino Residents For Responsible Government says they are giving the office holders 14 days to respond to the petitions.

Per the Charter of the City of San Bernardino, Section 122:

Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed.

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 Notices of Intention to Circulate Recall Petitions in the Proposed San Bernardino Recall 2013

By Michael Reiter, Attorney at Law

Below are four of the Notices of Intention to Circulate A Recall Petition, or at least unexecuted and undated versions.  The originals were in PDF format which were printed with the home addresses of the petition signers were crudely redacted using a Sharpie Magnum Permanent Marker, and rescanned into PDF.

City Attorney James F. Penman

The reasons for the recall are listed by Scott Beard, the proponent, Wendy McCammack’s appointment to the City of San Bernardino Planning Commission, Rialto-based developer, and Seventh Ward resident:

The grounds for the recall are as follows: Mr. Penman is the duly elected City Attorney, and as such is accountable for the actions of that office and of his subordinates. Mr. Penman has been derelict in his official duties by failing to properly enforce the law regarding personal use of public property by members of the Common Council. In addition, Mr. Penman’s office’s selective enforcement of City codes and his failure to timely update and codify city codes, ordinances, and other matters lawfully passed by the City Council has created confusion and insecurity in the City’s residents and businesses regarding accuracy of the City’s published law.

Council Member Virginia Marquez, First Ward

The reasons listed for the recall in the Notice of Intention are listed by the proponent, Christian Fernando Flores (who was reported in the Sun as a student at California State University, San Bernardino):

The grounds for the recall are as follows: Council Member Marquez was elected to office
in November of 2009 and has since that time has failed to protect the health, safety, and welfare
of the residents of the City of San Bernardino and demonstrated dereliction to the duties of her
elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible
program leading to the misuse of the City’s General Fund. Council Member Marquez’s actions
and failures to act, have propelled the City of San Bernardino into financial crisis, and have led
to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City. The City
of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of
the bankruptcy and its proceedings.

Further, Council Member Marquez has violated the public trust by repeatedly failing to
reach consensus with the other members of the San Bernardino City Council on basic issues of
City finances, and ignored advice of the City’s Executive Staff for the previous two years
regarding financial concerns. Her actions have led to massive reductions in City services and
police and fire personnel, causing an increase in crime rates, businesses leaving the City, and
contributed to overall blight within the City.

Council Member Fred Shorret:

The proponent of the recall against Fred Shorett, 4th Ward Council Member, Stephen T. Dawson, who is the chairperson of the United  Transportation Union, states:

The grounds for the recall are as follows: Council Member Shorett was elected to office in March of 2009 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible program leading to the misuse of the City’s General Fund. Council Member Shorett’s actions and failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Council Member Shorett has violated the public trust by repeatedly failing to reach consensus with the other members of the San Bernardino City Council on basic issues of City finances which would allow the City of San Bernardino to emerge from the bankruptcy proceedings and begin revival of its economy. The City of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of the bankruptcy and its proceedings.

Mayor Patrick J. Morris:

Scott Beard, also the proponent of the recall against City Attorney James F. Penman, gives these reasons:

The grounds for the recall are as follows: Mayor Morris was elected to office in February of 2006 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by failing to veto fiscally irresponsible votes and fiscally irresponsible programs leading to the misuse of the City’s General Fund. Mayor Morris’s [sic] failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Mayor Morris has violated the public trust by repeatedly failing to facilitate consensus with the members of the San Bernardino City Council on basic issues of City finances, and ignored advice of the City’s Executive Staff for the previous two years regarding financial concerns. His action and inaction have led to massive reductions in City services and police and fire personnel, causing an increase in crime rates, businesses leaving the City, and contributed to overall blight within the City.

The original PDFs, which are not the embedded redacted versions you see here, have some metadata that explains a little about the origin of the PDFs that were obtained. The Notice of Intent  involving Mayor Patrick J. Morris was created on April 28, 2013 at 10:04:50 PM, with the application being Microsoft Word 2010, with “Michael” listed as the author.  The Notice of Intent to Virginia Marquez  was titled C:\My Files000 — SanBernardinoMatter\NOI.2013.1stWard(Marquez).wpd, also authored by “Michael.”  It was created on April 28, 2013 at 2:19:17 PM.  The original file was on WordPerfect (as you can see by the extension), but the PDF was created by Acrobat Distiller 9.0.0. The Fred Shorret document was created by Microsoft Word 2010, also authored by “Michael.”  It was created on April 28, 2013 at 3:40:59.  The City Attorney James F. Penman document was also on Word 2010, on April 28, 2013, at 10:00:13.

What does this metadata mean?  That whoever created the PDF (but not necessarily the author of the petitions), was named Michael, and that at least one of the documents was created on WordPerfect.  WordPerfect is, or was, largely used by attorneys. No conclusions can be drawn from this metadata.  The Michael may refer to Michael McKinney, the Orange County-based publicist for the recall proponents.  It could be someone else entirely.

Unfortunately, the petitions to recall Second Ward Council Member Robert Jenkins, Third Ward Council Member John Valdivia, Fifth Ward Council Member Chas Kelley, Sixth Ward Council Member and Mayoral Candidate Rikke Van Johnson and Seventh Ward Council Member Wendy McCammack were unavailable.

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

City of San Bernardino Bankruptcy: What Did They Know and When Did They Know It?

By Michael Reiter, Attorney at Law

We do not yet know the full story about what went wrong as far as misstatements or miscalculations (incompetence) or concealment (fraud) of numbers in the City of San Bernardino that led to the situation wherein the City of San Bernardino had or has, at some point, less than $150,000 in its bank account.

First, from primary sources, City staff (on July 9, 2012) stated that as of April 3, 2012, City staff was still misreporting the fund balance.

The Finance Department of the City of San Bernardino created a report, dated July 9, 2012 , Page 7:

Starting General Fund balance has been erroneously stated for the past 2 fiscal
years

Fiscal Year                                July 1st Audited Fund Balance              Staff Reported Fund Balance
FY 2009-2010                           $2,708,319                                                     $2,557,900
FY 2010-11                               $410,293                                                             $1,770,400
FY 2011 -12                              $(1 ,181,603)                                                       $2,044,100*
*Mid-Year report presented April 3, 2012.

Going back to the April 3, 2012 meeting in the City of San Bernardino’s online archives, I was unable to find any minutes after January 23, 2012.  Here is the April 3, 2012 Agenda for the Joint Adjourned Regular Meeting of the Mayor and Common Council.

In a staff report by Rebecca Garcia, through City Manager Charles McNeely, for Item 3A, the purpose of the workshop was to “Discuss proposed revenue enhancements and cost containment strategies and provide direction
as to measures to be researched and presented for further Council review, analysis and consideration at a future meeting.”  This staff report includes the chart that gives the $2,044,100 opening fund balance for FY 2011-2012, but also has a different number (then in the July 9, 2012 report) for 2010-2011: $2,998,000.

In the staff report by Jason Simpson, Director of Finance, for Item 1A,  on the April 3, 2012 agenda he warns on Page 10:

A major concern that needs to be noted is that the City’ s General Fund continues to be in an
increasing weakening condition and immediate changes need to be made to reverse this financial
condition, build the General Fund Reserve, and stabilize this fund. If these efforts are not made,
insolvency or bankruptcy may result. The Council has an opportunity to resolve the issue and
change the City’ s course. If not, control may be taken out of the Council’ s hands. [Emphasis Added]

However, on packet page 12, Jason Simpson’s report gives the opening fund balance for 2012 as $2,044,100.

Imran Ghori wrote an article published April 3, 2012 at 9:15 p.m., “San Bernardino: City Faces $3.8 millon shortfall[;] The decline in sales and property taxes are hurting the city, a mid-year budget report shows.”  The story starts:

San Bernardino could be headed for insolvency or bankruptcy if it’s not able to get its general fund budget under control, according to a mid-year budget report presented to the mayor and City Council on Tuesday. [Emphasis Added].

The first time the fund balance issue was in the traditional press is in The Sun, “San Bernardino facing bankruptcy if deep cuts aren’t made” by Ryan Hagen, posted online on July 7, 2012 at 8:13:10 p.m. PDT.  In the article, ”

“[Council member Wendy] McCammack also said she was troubled by the budget report’s note that the general fund’s starting balance has been erroneously stated for the past two fiscal years.

That reached a peak several months ago, when then-City Manager Charles McNeely said the fund had a balance of $2 million but the audited fund balance on July 1 turned out to be in the red by $1.2 million.

It appears that the first time that City Attorney James F. Penman mentioned, in public, that 13 out of 16 budgets may have been falsified (and I am paraphrasing from the press account) was at the July 9, 2012 Council Meeting.

As far as what did people know and when did they know it, the rest is from press articles. This article, from public radio station KPCC, “San Bernardino authorities confirm probe into city finances” by Steven Cuevas with Nick Roman, posted 6:00 a.m. on Friday, July 13, 2012 says:

Before the San Bernardino City Council’s bankruptcy vote Tuesday, City Attorney Jim Penman announced that unidentified city administrators had cooked the books to make it appear the city had more cash in reserve than it actually had.

The alleged deceit was uncovered during an audit by new finance staff working under interim city manager Laura Travis-Miller, who took over four months ago.

. . .

Sixth District [sic] councilman Rikke van [sic] Johnson said Penman gave a short briefing to council members prior to the council’s emergency budget meeting Tuesday. But he said it was short on details.

“It wasn’t nothing as far as, ‘OK, this year that happened’ or ‘that year, this happened’ or anything like that,” said Van [sic] Johnson.

“There wasn’t no specifics, other than he said that it’s under investigation. And unfortunately, what was said in that so-called briefing should have stayed in that so-called briefing and went to the right parties. Because we’re dealing with an even bigger issue then that that as far as bankruptcy. All the sudden your issue becomes the lead issue when it shouldn’t be.”

Presumably, this information was given in closed session.
This blog piece comes from an interview yesterday with Interim City Manager Andrea Travis-Miller:  The piece appears in the Los Angeles Times Blog LA NOW, posted July 13, 2012 at 7:25, by Abby Sewell and Phil Willon, labled “Criminal Probe

Miller said the city’s financial problems had been evident for many years, but the full scope was not evident until more recently, when she and the new finance director took a hard look at the books.

She said there had been inaccurate financial reporting in the city for many years, which delayed the process of understanding the full financial picture, but she said she had not seen evidence of deliberate wrongdoing.

“I have not found that there’s anything more than negligence, maybe sloppiness,” she said, adding that staffers at the time were stretched thin because of cuts.

Andrea Travis-Miller became acting City Manager on May 8, 2012, but was assistant before.  Jason Simpson began work on March 28, 2012.  So, if the quotes from Andrea Travis-Miller are correct, the problem was found sometime between March 28, 2012 and when the July 9, 2012 report was posted.

Bankruptcy was first mentioned in the April 3, 2012 staff report.  The misstating of the fund balance was found some time after March 28, 2012, but not reported on April 3, 2012 by Jason Simpson in his staff report.  The first public document showing the wrong data for two years was in a report for the July 9, 2012 meeting.  Time will tell  what they knew, and when they knew it.

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

Where are David McKenna For San Bernardino City Attorney 2011’s Nonmonetary Contributions Coming From?

By Michael Reiter, Attorney at Law.

Schedule C of David L. McKenna’s California FPPC Form 460, filed September 29, 2011, and signed by David McKenna acting as his own treasurer, discloses the names of contributors who have made $100 or more in nonmonetary contributions this year through September 24, 2011

Date Rec’d Name and City Occupation/Employer if Ind. Description This Period YTD
7/15/2011 Tom Brickley Construction Rent for HQ 600 600
7/15/2011 Osvaldo Garcia, SB Dentist Rent for HQ 600 600
7/15/2011 Doug Debois, SB Insurance Agent Rent for HQ 600 600
7/15/2011 Jack Katzman, SB Property Manager Rent for HQ 600 600
9/2/2011 Power Pac Voter Fund, SF  Field Coordinator 2500 2500
SubTotal: 4900

The largest nonmonetary contribution is from the Power Pac Voter Fund.  Who is PowerPAC?  According to their website, powerpac.org,  “PowerPAC is a nonprofit advocacy and political organization. PowerPAC was organized to champion democracy and social justice in states and communities across the country.”  They have been involved in San Bernardino politics before: they supported Carolyn Tilman, Rikke Van Johnson and Rachel Clark in 2007.

Their focus in San Bernardino, according to their website:

In San Bernardino and Orange Counties PowerPAC seeks to support emerging community based coalitions aimed at increasing voter participation and turnout among emerging populations such as Latinos and Asians. Using community identified social justice issues of such as: immigrant rights, equity in educational access and affordable housing PowerPAC seeks to support community activists and community based organizations to strengthen coalitions to build non-partisan voting bases that can advocate for improved policy. In San Bernardino, for example, PowerPAC has campaigned with community groups to build non-partisan voter growth and engagement with the San Bernardino Social Justice Coalition (SBSJ).

In the rapidly growing Latino community, this especially means working with new and young voters. The California Latino voting age population is remarkably young. PowerPAC’s aim to support this emerging population in California by supporting community groups who seek to build voter consciousness and empowerment on issues that they have self identified as important to them – such as education in the form of the passage of the California Dream Act, healthcare and lack of coverage for the millions of uninsured, and the current housing crisis in its dual faces of lack of affordable housing and predatory lending. As the Latino population continues to surge and more Latinos come of age, PowerPAC aims to work with community groups and activists to establish a base of socially and civically empowered Latinos voting in their own best interest for themselves and their neighborhoods in California.

Presumably, the field coordinator provided to David McKenna will be responsible for voter persuasion, get out the vote (GOTV) efforts, and distribution of campaign materials.

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

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, electpenman.com 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