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

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