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HomeMy WebLinkAboutMC-374 --- .'/- ~ 28 1 ORDINANCE NO. HC-374 2 ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 2.20 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROVIDE FOR THE COORDINATION AND CENTRALIZATION OF MUNICIPAL LEGAL SERVICES AND THE RETENTION OF SPECIAL COUNSEL THEREFOR IN CERTAIN INSTANCES. 3 4 5 WHEREAS, the Charter of the City of San Bernardino, Section 55 (d) provides in part that "The City Attorney shall be the chief 6 7 legal officer of the City; . . . shall represent and appear for 8 the City in all legal actions brought by or against the City, 9 and otherwise to do and perform all services incident to his 10 position and required by statute, this Charter or general law"; 11 and 12 WHEREAS, Charter Section 241 authorizes the Mayor and Common 13 Council to employ "such legal counsel and services and other 14 assistants, as may be necessary and proper for the interest and 15 benefit of the City and the inhabitants thereof"; and 16 WHEREAS, the Mayor and City Attorney are duly elected officers of the City, and Section 40(x) of the Charter provides 17 18 that, "Council shall have power to prescribe by ordinance the 19 duties of all officers whose duties are not defined by this 20 Charter, and to prescribe for any officer, duties other than 21 herein prescribed."; and 22 WHEREAS, it is necessary that Council interpret, reconcile, 23 and implement the foregoing Charter provisions pursuant to the 24 authority granted by Section 40(aa) of the Charter "to pass 25 ordinances and to do and perform any and all other acts and things 26 necessary and proper to complete execution of the powers vested 27 by law or this Charter, or inherent in the municipality, or that may be necessary or proper for the general welfare of the City or MC-374 '. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its inhabitants."; and WHEREAS, special counsel may be retained in certain instances in specialized fields of law such as bond financing, workers compensation liability, public and property damage liability, and water matters and other specialized fields, it is necessary that the performance of municipal legal services and the retention of special counsel therefor in certain instances be coordinated and centralized through the City Attorney in order to minimize cost, avoid duplication, provide centralized control, assure the quality of legal services, and protect the attorney- client privilege of the City. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. Chapter 2.20 is added to the San Bernardino Municipal Code to read as follows: "CHAPTER 2.20 SPECIAL COUNSEL SERVICES 2.20.010 Definitions. A. 'City' shall mean the City of San Bernardino, California. B. 'City Attorney' shall mean the City Attorney or, in his or her absence, the Assistant City Attorney, or in the latter's absence, the highest ranking Deputy City Attorney available. C. 'Council' shall mean the Mayor and Common Council as that term is defined in Section 40 of the San Bernardino City Charter. D. 'Special counsel' shall mean an attorney at law licensed to practice in the State of California who specializes in a field 2 MC-374 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such as bond financing, workers compensation liability, public and property damage liability, water matters or other specialized field. 2.20.020 Coordinated legal services. The performance of all municipal legal services shall be coordinated, centralized and processed through the City Attorney, subject to the provisions of this chapter. Any summons or claim served upon the Mayor or City Clerk or other City officer shall be transmitted to the City Attorney immediately upon receipt. 2.20.030 Requests for legal services. Requests for the performance of legal services for the City or any City officer or department thereof shall be directed to the City Attorney. Requests for legal services other than oral advice shall be made in writing. 2.20.040 Retaining special counsel. Special counsel shall be retained by the Council pursuant to Charter Section 241 subject to the recommendation of the City Attorney that such counsel is necessary in instances when legal specialization not possessed by the City Attorney is required or when the City Attorney is unable or disqualified from performing such legal services. Special counsel shall not be retained when the City Attorney is willing and able to perform the legal services as a part of the ordinary professional functions of his or her office. The City Attorney shall advise the Mayor and Common Council as to the experience and qualifications of attorneys considered for retention as special counsel. 2.20.050 Scope of legal services. The scope and cost of the legal services to be performed by 3 . . MC-374 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ... \ special counsel shall be authorized and delineated by the Council, and the scope of such services shall not be modified except when relevant to such authorization, as determined by the Ci ty Attorney. 2.20.060 Legal services procedures. The product of legal services performed by special counsel shall initially be presented to the City Attorney for review and coordination before final submission to prevent duplication and to enhance the quality of legal services. Special counsel shall consult with the City Attorney concerning the legal services prior to completion. The City Attorney and special counsel shall be named as co-counsel in any court case or legal proceeding instituted. Any request or directions made to special counsel from any City officer shall be coordinated through the City Attorney. The City Attorney shall be briefed and informed prior to legal services being presented to or performed on behalf of any City official or officer. 2.20.070 Outside counsel. Any City officer requesting legal services concerning City business from outside private or public legal counsel Cother than special counsel retained by the Council) shall first inform the City Attorney of such intended request for outside legal services and shall not utilize such legal services without the approval of the City Attorney or Council. 2.20.080 Confidentiality of matters related to prospective or pending litigation. The Council at a public meeting may authorize and appoint the Mayor or not more than three members from the Council to act 4 . ( MC-374 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 , : as its representative or representatives, subject to coordination with the City Attorney, in communicating or conferring with special counsel retained in special matters or court actions. Unless authorized or appointed by the Council to communicate or confer with special counsel, neither the Mayor nor any member of the Council shall confer with or give any direction to special counsel concerning the case or court action, unless done in a closed session held during meetings of the Council. This provision shall not limit the right of the Mayor or any Council member to obtain information concerning any such matter or court action from the City Attorney. The Council shall limit discussion of the City's position in litigation, except as to matters which are of public record, to closed sessions and shall keep attorney-client communications and discussions at such closed sessions private and confidential." SECTION 2. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance or any part thereof. The Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional. I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held regular 5 , , ~. m:-J74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the ___~ day of , 1984, by the following June vote, to wit: AYES: Council Members Castaneda, Reilly, Hernandez, Marks, Frazier, Strickler NAYS: None ABSENT: Council Member Quiel ~df~~ The foregoing ordinance is hereby ..tt ",,_,1 rl1is day of June , 1984. Mayor of the City of San Bernardino Approved as to form: ~~~ J)?<Jh.~f City At orney I hereby disapprove of the foregoing ordinance for the following reasons: A) Said ordinance violates Sections 50 and 52 of the Charter of the City of San Bernardino in that it Ivill do the following: 1) Inhibit the t1ayor's duty to "cause the strict enforcement of all laws and ordinances within his jurisdiction." 2) Shall inhibit the 11ayor's duty to"dil igently observe the official conduct of all public officers and take notice of the fidelity and exactitude, or want thereof, with Wilich they execute their duties and obligations." 3) Shall inhibit the Mayor's duty to exercise "general supervision over all of the departments and public institutions of the City." 4) Shall inhibit the Mayor's duty to see that all departments and publ ic institutions within the City are "honestly, economically, and lawfully co nd ucted. " 5) Will inhibit the !.iayor's duty to "see that all contracts and agreemen with the City are faithfully kept and fully performed." (Co:mNUED - iJEXT PAGE) 6 MC;-J.74 1 6) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . Shall inhibit the Mayor's duty and responsibility to have "general supervision of all City officers, elected and appointed, except councilmen."