Did the San Bernardino Unified School District Violate Education Code Section 7054 Regarding Advocacy For Measure N on The November 6, 2012 Ballot?

By Michael Reiter, Attorney at Law

Measure N is the San Bernardino City Unified School District’s bond measure is to sell $250,000,000 (250 million dollars or a quarter billion dollars) in aggregate principal of  bonds with a maturity not to exceed twenty-five years. The ballot statement and resolution do not give the total cost to the bond issue including principal and interest.  The District’s estimate is that it will cost property owners $34 per year for each $100,000 of assessed value to pay the principal and interest on the bonds (which is in addition to any existing bonds).  It was placed on the ballot by the Board of Education on August 7, 2012 by a six to one vote.  The members voting for were Barbara Flores, Mike Gallo, Margaret Hill, Bobbie Perong, Lynda Savage, Judi Penman.  Danny Tillman voted no.  The measure requires a 55 percent “yes” vote to pass per Proposition 39 (2000) and Education Code section 15264.  In connection with Measure N, the San Bernardino Unified School District has sent mass mailings, including this piece:

California Education Code section 7054 reads, as of today:

(a) No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.
(b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:
(1) The informational activities are otherwise authorized by the Constitution or laws of this state.
(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.
(c) A violation of this section shall be a misdemeanor or felony punishable by imprisonment in a county jail not exceeding one year or by a fine not exceeding one thousand dollars ($1,000), or by both, or imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, or two or three years.
Therefore, a school district cannot use funds for the purpose of urging the support or defeat of any ballot measure or candidate.  California Education Code section 7054(a).  However, a limitation to California Education Code seciton 7054(a) is that a school district may expend public resources to provide information to the public about the possible effects of any bond issue if two conditions are met.  The informational activities are otherwise allowed by law, and the “information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.”  California Education Code section 7054(b).  The violation of this section is a wobbler, punishable as a misdemeanor or felony. California Education Code section 7054(b).
In the resolution of August 7, 2012, the San Bernardino Unified School District Board of Directors made this finding:
WHEREAS, the District needs to install lighting, replace and fix fences and update security
alarms to keep students safe during and after school and to protect our schools from gang
members who break into schools, vandalize and steal equipment;  . . .
The front of the mailer states “From the Desk of School District Police Chief Joseph Paulino”

The letter says

Dear Neighbor:

As School District Police Chief, my job is to keep our students and school sites safe.
I also seek to protect our schools from intruders who break into schools, vandalize, steal school equipment and tag walls with graffiti. Unfortunately, many of our schools have outdated security alarms, inadequate fences and limited lighting.
Measure N is on your local ballot.  Among the priorities included in Measure N are the following safety and security upgrades to San Bernardino and Highland schools:
  • Maintain safe, clean clasrooms
  • Repair/replace leaky roofs
  • Remove asbestos and other hazardous materials
  • Repair/replace fire alarms, security and electrical systems
  • Replace old playground equipment with new, safer equipment

Remember to vote on Measure N.

Sincerely,
/s/
Chief Joseph Paulino
San Bernardino School District
Police Department
The Measure does not give an actual project list (meaning, x amount is going to do x at Cajon High School on x date).   However, there is a more generic project list, and this is the relevant section:
School Safety and Energy Efficiency School Projects
Goal and Purpose: The District must protect its schools from gang members who break
into schools, vandalize and steal equipment and tag walls with graffiti. Unless the District
replaces outdated security alarms, inadequate fences and limited safety lighting, it can’t
keep them out. To keep students safe during and after school, projects such as proper
lighting, fences and security alarms are needed:
Student Safety
• Repair and replace security and electrical systems, such as security lighting, fencing,
gates and classroom door locks.
• Upgrade fire alarm systems including fire safety equipment and sprinklers to make
students safe in the event of an emergency.
• Upgrade schools to meet handicap accessibility requirements.
• Remove hazardous materials like asbestos and lead paint from older school sites.
• Increase after-school program space to reduce juvenile violence.
The headline’s question is whether the District’s statement has violated California Education Code section 7055 regarding advocacy for Measure N.  The California Supreme Court decision in Stanson v. Mott (1976) 17 Cal.3d 206 is important to consider in such cases. The Court ruled:
On June 4, 1974, California voters approved a $250 million bond issue to provide funds for the future acquisition of park land and recreational and historical facilities by state and municipal authorities. One day before the election, plaintiff Sam Stanson filed the present taxpayer suit, alleging that defendant William Penn Mott, Jr., director of the California Department of Parks and Recreation (department), had authorized the department to expend more than $5,000 of public funds to promote the passage of the bond issue. Asserting the illegality of such use of public funds, plaintiff sought a judgment that would require Mott personally to repay the funds to the state treasury and any other appropriate relief.

. . .

As we explain, past decisions in both California and our sister states establish that, at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign; in the present case, no legislative provision accorded the Department of Parks and Recreation such authorization. Although the department did possess statutory authority to disseminate ‘information’ to the public relating to the bond election, the department, in fulfilling this informational role, was obligated to provide a fair presentation of the relevant facts. Since plaintiff specifically alleged that public funds were expended for ‘promotional,’ rather then ‘informational,’ purposes, his complaint stated a valid cause of action, and the trial court erred in sustaining defendant’s demurrer. If plaintiff proves the allegations of his complaint at trial, he will be entitled to at least a declaratory judgment that such expenditure of public funds was improper, and, perhaps, to injunctive relief as well.
Whether defendant Mott may be held personally liable for the funds which have already been spent presents a more difficult question. Although early California decisions held public officials strictly liable for any unauthorized expenditure of public funds, even when such expenses were incurred in good faith, subsequent legislation has considerably narrowed the circumstances under which public employees are generally held personally accountable for resultant losses. In accommodating the policy underlying this legislative development with the long-recognized public interest in protecting the public treasury from potential mismanagement or abuse, we conclude that defendant may be held personally liable to repay expended funds only if he failed to exercise due care in authorizing the expenditure of the funds. Stanson v. Mott (1976) 17 Cal.3d 206, 209-210.
What is the difference between promotional and informational? Stanson v. Mott says it’s a fine line, but in the case of Mr. Stanson v. Mr. Mott, left it to the trial court to decide:

Problems may arise, of course, in attempting to distinguish improper ‘campaign’ expenditures from proper ‘informational’ activities. With respect to some activities, the distinction is rather clear; thus, the use of public funds to purchase such items as bumper stickers, posters, advertising ‘floats,’ or television and radio ‘spots’ unquestionably constitutes improper campaign activity (see, e.g., Mines v. Del Valle, supra, 201 Cal. at p. 276, 257 P. 530; Porter v. Tiffany, supra, 502 P.2d at p. 1386), as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. (See 51 Ops.Cal.Atty.Gen. 190, 194 (1968); Stern v. Kramersky, supra, 375 N.Y.S.2d 235.) On the other hand, it is generally accepted that a public agency pursues a proper ‘informational’ role when it simply gives a ‘fair presentation of the facts’ in response to a citizen’s request for information (see Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677; Stern v. Kramarsky, supra, 375 N.Y.S.2d 235, 239—240; 51 Ops.Cal.Atty.Gen. 190, 193 (1968)) or, when requested by a public or private organization, it authorizes as agency employee to present the department’s view of a ballot proposal at a meeting of such organization. (See Ed.Code, s 1073;cf. Citizens to Protect Pub. Funds v. Board of Education, supra, 98 A.2d 673, 677.)

      Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a ‘fair presentation of facts’ relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to ‘Vote Yes,’ have nevertheless been found to constitute improper campaign literature. (See 35 Ops.Cal.Atty.Gen. 112 (1960); 51 Ops.Cal.Atty.Gen. 190 (1968); cf. 42 Ops.Cal.Atty.Gen. 25, 27 (1964).) In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.  Stanson v. Mott (1976) 17 Cal.3d 206, 221-222.
The question, then, is this presentation “fair and impartial?  The mailer does not say Vote for Measure N, (it says “vote on Mesaure N”).  On the other hand, it says that the Chief wants to keep students and school sites safe, and protect schools from intruders, and that many schools have outdated security alarms, inadequate fences and limited lighting. It then says that Measure N is on the ballot.  It then says that the priorities included in Measure N are the following safety and security upgrades.  Arguably, each of these things are true.  However, someone may argue that in placement of the needs and the solutions to that need together, the San Bernardino Unified School District has gone from a strictly informational piece about Measure N to advocating for voters to vote for Measure N.  Further, the style of the mailer looks like a campaign advocacy piece, showing the picture of the Chief in his uniform, showing stock photos of alarms and a fire pull box, and a drug free, gun free, school zone sign.
Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

Over on sbdpolitics.com: The San Bernardino City Attorney’s Office Budget: Additional Appropriation On City of San Bernardino Council Agenda 11/21/2011

By Michael Reiter, Attorney at Law.

Over on sbdpolitics.com, there is a brief discussion of an additional appropriation on today’s San Bernardino City Council Meeting.  Click on the link in the previous sentence to go directly to the article.

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) 296-6708

Looking for San Bernardino County Politics? Go to sbdpolitics.com

By Michael Reiter, Attorney at Law.

I have started a companion site for the political posts called sbdpolitics.com.   I will probably cross-post now and then between the blogs, especially during election season.  However, the idea is for sbdpolitics to contain the vast majority of political, versus legal, postings.  This blog, michaelreiterlaw.wordpress.com, will include municipal law topics, but less pure political posts.

The new site will be similar to this one: neutral, original content, value-added commentary, not a rehash or aggregators, and not a troll haven.  I invite people to comment, but commenters have to use your real name and not a pseudonym.  The design will hopefully improve over time.

Feel free to read both blogs, I will continue to write on municipal law and other legal subjects at michaelreiterlaw.wordpress.com, as well as about other legal topics.  There are links to sbdpolitics.com under the title, and in the links on the right of this blog.

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

How Did the Candidates Endorsed by the PE and Sun Fare In The November 2011 San Bernardino Elections?

By Michael Reiter, Attorney at Law.

How did the local press do with their endorsed candidates?

The Sun endorsed:

San Bernardino City Council:

  • 3rd Ward: Tobin Brinker
  • 5th Ward: Chas Kelley
  • 7th Ward: Jim Mulvihill
  • San Bernardino City Attorney
  • David McKenna
  • San Bernardino City Clerk
  • Gigi Hanna

Of the City of San Bernardino races the Sun’s editorial board endorsed, the Sun went 1-3-1.  The tie was Gigi Hanna, who made the run-off for San Bernardino City Clerk.

How about our friendly neighbors to the south from the Riverside Press-Enterprise?:

David McKenna, Tobin Brinker, Chas Kelley and Jim Mulvihill.

How did they do?  1-3.

Either an anonymous wag, a hyperpartisan blogger or a paid political consultant said that a Sun or Press-Enterprise Endorsement was a kiss of death, but I would characterize the endorsements as largely irrelevant.  I think the one place that the endorsement may have helped a candidate is Gigi Hanna, because though she has lived in San Bernardino for some time, she was not as well known as some of the other choices.

What about the other periodicals? The Black Voice News: Lynda Savage, Mike Gallo, Juan Lopez and Margaret Hill for San Bernardino City Unified School District Board.  Not bad, they were 3 for 4.  How about the City of San Bernardino?  A bloodbath.  They endorsed Tobin Brinker, Larry Lee, Rikke Van Johnson, Jim Mulvihill, Esther Jiminez and David McKenna.  Of course, Rikke Van Johnson won because he was unopposed.  Otherwise, The Black Voice News’ picks all lost.

Cross-posted at sbdpolitics.com

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

San Bernardino City and San Bernardino City Unified School District Election Round-Up

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.

A variety of mail has arrived in local mailboxes in the last few days to catch any last minute voters (those that have not mailed or dropped off last minute ballots, and those that vote the old-fashioned way: in person.  We have a post card from the San Bernardino Teachers Association: front and  back.  This is their third mailer, endorsing Juan Lopez, Sharon “Bobbie” Perong, Margaret Hill and Lynda K. Savage.

Next, we have the fourth David McKenna for San Bernardino City Attorney mailer, with the headline “The Choice for San Bernardino City Attorney is like Night and Day . . .” on the front, and the reverse has the headline “Community Leaders and Reliable Sources All Support David McKenna for City Attorney”

Teresa Para Craig sends another mailer.  Here is the front, here is the back.

Lastly is a Larry Lee for City Council mailer.  This is the first adversarial piece from Larry Lee.  Pastor Lee, from all I have heard is a very nice man, and even his attack mail is very well-mannered.  The photograph of Chas Kelley is very professional and is attributed to the San Bernardino Sun.

The mailer is an over-sized post card.  It says, on the front that “ON NOVEMBER 8TH THE CHOICE IS CLEAR” in red letters.

Next to a picture of Pastor Larry Lee is the subheading “Our Interests” and the following bullet-points: “Larry Lee will fight for our interests.”  “Larry Lee is asking for your support so he can protect our interests above all else.”  “Our city needs a balanced impartial voice that supports good wages for our public employees without bankrupting our city.”

Next to the photograph of Chas Kelley is the subheading “Special Interests” “Chas will fight to protect the interest of public employee’s [sic] unions.”  “Chas Kelley’s support comes from employee’s [sic] unions because he protects their interests above all else.

That’s the extent of the attack.  The same side continues in large yellow block letters “LARRY LEE FOR CITY COUNCIL”  and in smaller white block letters “VOTE NOVEMBER 8TH TO TURN OUR CITY AROUND.”   This mailer is the only one that uses the “fill-in the arrow”  that I have seen on any campaign mail for any position this turn.

The mailer continues with the following maxims: “GOOD GOVERNANCE is based on the establishment of a representative and accountable form of government.”  “POOR GOVERNANCE stifles and impedes development good governance is for independence.”  Your guess is as good as mine.

Pastor Lee ends the first side with some Christian scripture with no attribution.   It is a translation of 1 Corinthians 13:  “Love is patient, love is kind.  It does not envy, it does not boast, it is not proud.  It is not self-seeking, it is not easily angered, it keeps no record of wrongs.  Love does not delight in evil but rejoices with the truth.  It always protects, always trusts, always hopes, always perseveres. Love never fails.”

The back continues the Christian theme by showing Larry Lee’s endorsements:   They include Brad Dacus, a Sacramento attorney and President of the Pacific Justice Institute, which claims to be a “legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties.”  Pastor Lee is also endorsed by Jim Cobrae, described as Senior Pastor of the Rock Church & World Outreach Center.  He is also endorsed by Dr. Rob Zinn, who is listed as Senior Pastor of Immanuel Baptist Church in Highland, and Dr. Joshua Beckley, the Senior Pastor of Ecclesia Christian Fellowship (spelled “Eccelesia” on the mailer).  He is also endorsed by Redlands Chief of Police Mark Garcia and Mike Gallo, who is running for San Bernardino Unified School Board.

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

Who will win the San Bernardino City Unified School District Election on November 8, 2011?

Mike Gallo for San Bernardino City Unified School District Mailer

By Michael Reiter, Attorney at Law.

For those of you that have not voted yet, here is a mailer from San Bernardino Unified School District candidate Mike Gallo:  Here is the front, here is the back.

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