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INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
To:
The Mayor and Common Council
From:
James F. Penman, City Attorney
Subject:
Request for Reimbursement/Payment of Legal Fees
Date:
April 12,2006
In December 2005, Ms. Judith Valles, acting as an individual, filed a complaint with The State
Bar of California, through her attorneys, Margolis & Margolis, against City Attorney James F.
Penman (reference: Margolis & Margolis November 3,2005 Complaint against Attorney James
F. Penman; please note final sentence of first paragraph, page I, Exhibit "A," copy attached.)
The complaint, in summary, appears to be that City Attorney James F. Penman, while advising
the Mayor and Common Council at a regularly scheduled meeting of said Mayor and Common
Council held on September 19,2005 may have committed some violation of the Rules of
Professional Conduct.
Included with the complaint to the State Bar was a complete video tape of items # S-I and #S-2,
from the televised City Council meeting of September 19,2005. Thus, The State Bar was able to
review my conduct on that date, which was the subject of the allegations. On April 7, 2006,
following the submission of further evidence, and argument by my attorney, the State Bar of
California issued a letter confirnling that "there are insufficient grounds for disciplinary action."
That 1 was acting within the course and scope of my employment, is, apparently, not challenged
by Margolis & Margolis, inasmuch as their complaint states, "[d]uring that public proceeding,
the City Attorney, James Penman, served as legal advisor to the City Council, seated near the
Council, with his own microphone." ( Please see page 2, Exhibit "A".)
As a direct result of performing my duties as City Attorney for the City of San Bernardino, and
acting entirely within the course and scope of my employment by and for the City of San
Bernardino, it became necessary for me to engage the services of legal counsel to respond to the
allegations stated in the letter of complaint filed by the law finn of Margolis & Margolis with
The State Bar of California in December of2005.
Because the City of San Bernardino is self-insured, and because the city does not carry
:::# ;2 y-
/./11 7 bJ~
Memo to Mayor and Common Council
Request for Reimbursement/Payment for Legal Fees
April 12,2006
Page two (2)
malpractice insurance for its lawyers, including insurance to cover allegations of ethical
violations, it has been the practice of this city to pay for the legal defense for its lawyers when
such allegations have been filed with the State Bar in previous situations.
For example, in March 1997, responding to a previous complaint to the State Bar, the Mayor and
Common Council hired a law film to defend myself and a Deputy City Attorney, at city expense,
in such a proceeding. No ethical violations were found to have occurred in that case either.
On April 10,2006, the attorney I retained, Erica Tabachnick, received a letter dated April 7, 2006
from Dane C. Dauphine, Supervising Trial Counsel of The State Bar of California informing her
that "the determination has been made that there are insufficient grounds for disciplinary action.
Therefore, we are closing our file at this time, without prejudice." (Reference, April 7, 2006
letter from the State Bar of Cali fomi a to Erica Tabachnick, copy attached as Exhibit "B".)
After conferring with Mayor Patrick J. Morris, I am requesting, "that the Mayor and Common
Council allocate the sum of up to $3,900 from the City Attorney Outside Council budget (line
item # 001-051-5503) to reimburse City Attorney James F. Penman for his payment of$3,000.00
to attomey Erica Tabachnick, and that any remaining fees due Erica Tabachnick be paid to her
from the same account in an amount not to exceed $900.00, without further approval of the
Mayor and Common Council."
I would point out that I am roughly in the same position as a police officer, who, acting in the
course and scope of his employment, uses force he believes to be reasonable to detain a suspect
and is subsequently accused of excessive forcc.
I also mention that the city attorney's office, in the recent past and for many years in the more
distant past, has assisted several clected officials during investigations of their conduct by thc
Fair Political Practices Commission (FPPC,) and/or has sought legally binding opinions from the
FPPC on behalf of elected official(s) whose performance of their official duties, i.e. casting a
vote/intending to do so, on an agenda item, resulted in the need to obtain such an FPPC opinion.
I thank the Mayor and Council for their consideration of this request.
"tspectfUllY Submitted,
-' l)
,(/7.).~? "? l' (./.".,..,..-,-..-&<.
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( J mes F. Penman
\ .
'-City Attorney
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EXHIBIT AI -
Margolis It Margolis LU'
^TTOItNh'S AT LAW
ARTHUR I. AMlGOlIS
SUSNol L. MARGOLIS
2000 ~RSlDE DIM
LOS~. CAUFOIN4 90039.3158
TELEPHONE (3231953-8996
FA1. (323) 953-47"0
November :~, 2005
Office of rh~ Chief Trial Counsel
Complaint Intake
The Slale !jar of California
1149 South Hill Slreel
Lt)li An~eles. Cl\ 000 15~2299
RE' Complaint a&:ainst Attorney .Jqmp.~ F. Penmap
COfllpldinl lnlak~:
Th18 firm represents Judith Valles in her cnmplaint against
JamelS F. f'enmCUl. Ms. Valles is the Mayor of the CIty of San
BernardinQ: Penman is lh~ City Attorney of San Bernardino. and he is
prn~ntly l.l. candIdate for the offil.'t' of Mayor. Ms. Valles IS not running
for re-elp.ctJon. and J.;he 18 brtn~jng thil,i t.'ompla1nt as an indivIdual. not
as a publlc official.
San O~rnardlno City Coun~jJpp.r~n Rikke Van Johnson on or
about September 15. 2005. recommended that the San Bl'rnardino
Clty Council ,lpprnve t.he ronOUlin~ MOl1on:
"That In ord~r to assurt' the taxpayers that City
resources and funds are not br.ln!,: used for political
purposes. the: City Council shall file a formal complaint
w1th Uw Public IntegJil.y Unit l)f Ihe m~tril.~L Attorney's
o{f1ce requesting an lnvesUgauon of Mr. James Penman's
use 01' City resources for p<illtkal purposes In vlulaUon of
- Penal Code- Section 424 and Government Code Section
8314. and; furthennore. that the District Attorney's office
prosecute to the fullest extent. of the law any violation."
That proposal was baBed upon a Staff Report which slales. in
part.. as; follows:
"It ia clear. tha.t based on Mr. Penman's conduct over
the past several weeks. Mr. P~nman is USing the CIty'S
resow'cea. COQlpensated staff Um~ and City equipment.
includln~ computers, te1ephon~s. and faxe&. for his own
poHtlcal purposes as he catnpai~ng for thc office of Mayor.
Mr. Penman's unauthorizM and iI\~gal uS(! of ctty rtmourccs
'_'(_ :"_'~',,-"_' :;i~_ ',)...:'~~,.) IIi
I nt\ ;'tV,
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.
.
Complaint Intake
Srate Ear of California
Novt:mbcr 3, 2005
P;;tge 2
for hi~ pulitic.al needs is a gross violation of t.he public trust
and In direct. violation of the law. l\.q the el~t~ city
omclals resf><Inslbli> lor thf: (:ity'~ bud~eL We have a duty to
saft"~uard the taxpayer's doIl~rs and to ensure any illegal
qSC of public reSOl1((~es 1~ not allowed to continue,"
A helUing, Including public comment. wns held on that MOUon
on Sr:plemb~r 19, 2005. Durtn~ (hat public: procl':t:ding. the City
Attorney. JllmelJ Penman, !lerved a~ legal advisor to the City Council.
:<:it".ated near the Council. with his own microphone. That is. for a
proceedUl~ 1n Which it was being d~f'tded whether to request th~
District Attorney's office t.o condud a c.rlmtnal inve~l1gatlon of
remnant he served as legal advtsor 10 the Council.
During the meeting. he Intertwined his legal advice With
advocacy in hll:l Owt~ favor. Includln~ us!n~ the rreedom of his pO$1tion
.and phy!>lc-cU location to his advantagf" by Immedtately ar~ing against
ccmment$ made by membt!rs of rhe public. a procedure whieh would
have been out of ordf'r for anyone ~ll)e who hap~ned to be the subject
of the di~GllSslon. That h:J. he combined rug role as attorney for the
CoundJ wllh his role of represl"nUng himself.
When. during the prO(:eedin~. Councilpenton E8tl1er El'Itrada
rai"ed t.h~ obvious question of whethe>r Penman had a conflict and
whet.her th.. CouncH was enlitlcd to Independtmt legal adVlre. Penman
advised hls cUe.nt. the Council. that hI" was not claiming thCit he did
not have a ...~onf1ict. but that, n~vert.hel,.ss. the Council was not entitled
to anothrr attorney. He persistf'd in his role as legal advisor on the
matter about which he was the subject. and he persIsted in combintng
lhat role w1th iliat of representing himself and advocatinR on his own
behalf.
Il appear8 that In providing hh> lega.l Opinion that the Council
was notentiUed to the ..dvice of alloth~r attorney. Penman was relytng
upon Section 241 of the Charter of thf' C1ty of San Bernardino. niat
Stction prov1des:
"Upon lhe recommcndaUon. and with the Mitten
t;onsent. of the City Attorney. the Mayor and Common
Council shall oove power and authority to employ and
enga~t.' ~uch le~al counsel and Slervtces and other
assistants. as may be necp.ssary and proper (or the intert~!)t
and br.nefit of the City and the inhabitants th~eof."
:::)'-'J{,:,-':':~.h):_: ;!lU 1.):).4'4 rrl
t H^ J~U.
I. U'l/ Ud
.
.
Complf1lrH Inlake
Slate Aar of Caltfornia
No\'(:m~r 3. 2005
Pa,i;e 3
Penman. it seems, is jnt.~rprelln~ Section 241 i:U!l ~uperscdlng
his !>thlcal obligations. Thilt i5. because that ~ct1on requires his
conSl:'nt as a condition for the Council to obtain orher legal advice. he
apparently bellevcSl he IS free lo withhold his conS@lU eVen if he has a
disqualifying confiict. Yet, ~t is well-established that a lawyer in the
publlC sector 1$ not exempled from the conflict of interesl rules
appl1coble to other attomeys. Qf.ukm~Han Y. BrQWU (198 I} 29 Cal.3d
150. 157.
A videolape of th~ proC'eedln~ held on Sept~mbt"r 19, 2005 is
i.ncluded here..
~
It 15 requested that the State Bar 01 CalUal'l1ia erArnine the .......
(l) Whether Jamet Pe~man violated ethical requJremenu
l'eganUq conJI1cta:
(2) Whetller JUt legal advtc. to th. CouDci1 that it ... not
ent1Ued to independent lqal adrice was ttHlf . no1atiou ot eoDflict
law: aDd
(3) Whether he ,ave that aclv-iee to blI cltent in b.d fattb.
bowhlC it 'IiU uatrae.
Ai!, ~hown on the enclosed vtdt'olape of the pro(~eedln~s of
St:ptember 19, 2005. certain allcgaUon~ were mad!:. about him
re~ardlll~ /Sexual harassment. Penman r~panded by announcln~ thal
the State Bar of Califomia had fUlly mvestlgated those allegations and
found them to be Without met1t. We requett tbat the Bar determlDe
wbet.her P_~lwo wu 1)iD<< to hU client aJl4 the public ,..hell he nwie
that 8DII01aKemeat.
Further. 'in The Press-Enierpril)e neWpap~r, on Sepu'mbcr 16,
2005. It was reported that CQunctlperson R1kke Van Johnson
intended to ask the CouncU to request a C'rtmtnallnvesUgatlon of
Penman based upon the matters refiect.l"d 1n T-he Councilperson's
above.quoted MotIon as well as in the Sfaff Report,
The article stated. in part:
'The city attorney called .Joh.nson's step stlly.
~._ ::-::,",;'v~, j)~i ,;'),~:. In
t' hi\ !~U,
II U~/Ub
.
.
Ccmp!Qint Intake
State Bar of CalIfornia
November 3. 2006
Page 4
"Perunan also said h~ plans to draft a resolutlon tllot
calls for the dt..ttict attorney's P'lIbllc Intf\~rlty Unit to
investigate rutnor'$ about somi' officials usin~ city phones
and equipment to support other mayoral candidates,
'''People who live in gIllS!:! houses shouldn't throw
stcn~s,' he said.
"If (Johnson) puts sonH!lhing on the coundl
agenda. . , r.hllt's aimed at. promoting Judge Motr1$' campaign by
atlackhlJ;( another candidate JPenman]. that would be a misuse of
hl!ll officIal position to campai~n.' Pennum said. 'I'll have no
recOUrse but to refer that to the .glljtrlc:t attorney fQI
in Vf"l'ItJgatioD. '
"Penman observed that all the other City Council
members are either running (or election themselves or
have: endorsed a candidate In November's f!lect1on. 1f th~y
bat'k J9br\8on. th~y could find lh~msC'lves before th~
Public Intciril,y llDit as well. the city attor11ey saIQ."
(Bracket.ed material and emphufolls added.)
A copy of tht' article is Inclucted here,
(On thr. rnorntn~ of September 19, 2005. Penman telephoned
Mayor Valles prior to the hearinjl( regarding his own conduct. He
stated to her that unless the matter was wjthdrawn from the agenda.
h~ would pm'sue h.is own agenda Item calling for II Councll request that
the Uistrlct Attorney's office invcsti~ate possible criminal vi(llation.'l by
any elected C1ty official's use of public rp$ources lor campaignU1~
activities. [Copy enclosed.} He said that he would Withdraw IUs own
item if the Motl()n regar-dtng himself w~a dropped.)
, .
(MS. Valles did not join With Penman In that effort. and both
Items remained on the agenda. At anI' point, after at least a portion of
the hcannp. \\.'8S held regarding Penman. Councilman Rikke Van
Johm.on withdrew hi& Mol1on. and, In response, Penman withdrew his
own propo~al)
This matter 11 bI'ouahl to your attention Cot determination of
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.
.
Complaint Intake
State Bar of California
Novembt'f 3. 2005
Page 5
wbethcf I'e1mW1 violated Rule 5-100 of the Rules of Profeulonal
Conduct, wbicb Rule .tates. iu part:
"A m8WN:u' .hall DOt tb:reatell to preMnt crhn1n.l.
ad.mtnt-tradve. or disciplinary charleS to obtabl an
adnnbie In a dYI1 dtIpute."
It is alao pfeSellted for your eouideradoll of whether Pel"WUI:!t"
cou.dllCt 1UDCI\1D.ted. to. 01' WU ID the J1ature of. eztortlon .. deftacd by
Penal Code section en8. T1a.at 8ectloD .tat..:
''Ezt.o:rt1cm is the obut~'ft. 01 property from another.
with bls content, or the obt.'J1t~ of an ofIlclal act of .
public ofi1ccr, iuduced by wrondul \lie ot forec or fev. or
under color of ot!lclal rtaht."
w('. r~m;lln available to pro..ide furtht:f information and materials
Very truly yours.
6t1t: ,f }1~P1j~
Arthur L. Mar~olls
i\LM:jd
f.nd.
!,L..:-) I.JL CUUV il!U V;""''iV III
r M^ nu.
I. U fI UO
.
C]lJ::.OF SA~ B[R~ARDl~O .
.
RE()CEST FOR COUl\CIL ACTIO~
om. J:\:'o.fES F. 1'1.:::\\1.\'.;
eil; A.t!ortl~':'
S\JbJ~~I.:
('se orCi~ R~sQurccs B:. Ekcted Officlal$ for
POli\ical p\;l1lo~es
D~pt: CITY..qTOR:\F.Y
i.)J((; Sl:rt~mbl'( I;, 2005
MCC Date: Stptem ber 19, 2005
--'-".-- -.----.-,.
S;:nl)ps:s Jf p~C\ iOLJS COllIlCi! aCliCll:
"-- -----.---.-...
Reccmm~nded :notion;
Thou in order t.;: :l.SS'\IrI~ th~ laxpuyers thaI C::. re~l'urces ill'1d funds am nor being used for campaign aCtiyi ty,
the: City Council Sh311 r.lI: J f()rr:;~l requeSt lAilh lhl! ?ubli, inl.:griry 'Cnit of the Di:mi'l Anoml:Y's office tequesting
~J\ ~nl.csljgll.tlO:t of f'lmibie vio!:uions by any e\ecll:d City ofiidals' USt of public resources for campai&n activitles
in '. il1lation of P;:nai Cadi: SectIon 4~4 and Govrrnmrlnl (.ilJe Sect:on g~ 1.:1, and; fUl1n':Tmore. thlll the Distric:
A:;Qmc:y's oftic\: pmsecllle :0 the f'..1l1l!~l extent of :hI! I~w .1n~ violatior..
II
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Signature
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CO~t3ct ptrsor.: James t,..E~pm3r.
Phone;
5255
5upportlr.g d:it.1 :m~ch~d' S~ff Re;)ort
Ward
FL':-."D~O Rl::QL'lREYlE\'T:5;
Amount:
Source:
~ Finance: ~~
Cll,m,ill'ot~s, .
J):PI.d(l.::loC h:,I\.<~u,,<..F.101T,~ ;~i~,...s,><l
Agenda hem No. '. .:))......
elf 1([ Jt) j-
,rr;.C-,,'L el,:l.)\..,. lriJ 'J~)'"TU flJ
.
-~
Councilman,
city attorney
seek inquiries
I
i SAN 8ERNAIDJNO: Rake
: Van Johnson p<>um. III
I words at a meeting. Jim
: Peuman reports rumors.
rr '*IS IUlII4Il)
1\1 ~ lJlIiIIlQ
:1 Sap at:~O COWlCIJ-
[~hUI n:t>; called for a l:rimirwl
'~\l'KlJglAtion ot thll city ill-
ll)rne:;. \linel vowlld to ~i( rJ~
1)....11 ~be If \nVtittJnwl'I get
: orders to ~l:lrt Inv~ptiIla.
; !'he latl!~t SQuabb~ In a dty
i wht;r", ft:latlons 3.lll011i e!e;.1ed
: ol'tl!.1;t1s are not al.....aYl' cOtdUlI
: ($ 1'tl'1le4 In a Sc!pt 7 commlt\J!l'!
0,<;<:[1011 at which Clt~' .\ttQrne)'
jltn t'enClllln IlcCUHd Mayor
Ju.1.\111 Valle~ of undermining
. It!f.mpts to eonlrul the nw:obcT
i Of ~art"llet!~ lJvtng in San HElrnar-
rli:1!i.
Throu~h to ~;lolto!lIWl)mUn,
V~lll'g ~J@(~letl th~ uU~HI!1on.
CiHJI\Cll:n:\ll H.llUe Van JoM'
! ,;on helC Ll l1eWS "oi1!crellce
; 'nllll1lll11J' lIJ UCOOUllCC Penman,
who I~ run~for mayor John.
oun wants thll Slln Bllrnan:l1n.o
C~.ullty dl~trlct "tt.urnlly'~ otrIc.
'"' Ii'~t' PeD.l'llaJ'~ IIlIM be
:illc;:cd rnJsUSt!d SUItt time lInd
il} l~:;OUrcC$ Oy lObbing lCtu.
-,,1I..0M at ValJe;i l'3thtlr tnan
'J!opCJtng l"IMlnti(in, which i~
l.h~ \...gtS!ath'l! ~vJto.w O;,llUUlt-
ll:~")i ;;u.rpose.
Jol1oS/!n, whu supports ::iuPl?'
rillr Coun Judl:e Pat Morris'
maYOral llllndillacy. ...lId :,ue."
mjtu'~ vtolar.es l'iUU! lll\\' _ H Q
....in alik lha coundj Mooday to
request an invesdcadon, h~
said,
Thil cily altorntly culled J/Jhn-
-.;1m's SU!j) sillY.
Pcnman also said be plans III
draft a I'tiOlunon that C41~ (l>f
tne l1IStl'tCt att()ttl~Y'$ Pubhc
lntearUy L 'nit l.c tnvestttate
I'llmurs aboui some ollicl.1ll;
lJsinll ~'ity phones and equip-
ment to iUQport other maym';jl
candidates.
*Pcople wno llyt in I':lu!\:>
OOUHS ihouldll't tlU'ow Jltlrles."
be Wd.
'U Wohnson) puts sOmelhinl(
on the rouncU agelllti ... that";
almed at promotlng JlUlg~ Mvr
ri~; r.llmpul~ by attacldnc an-
othllr candldate, that would be a
misuse at Ilis oMl!Ial {)Mltlon lil
~mpl\ign. H Penmtl1 u1d. "I'll
hAvt nil recuum but to I"Cfl~r
that La [~ dlstnct atU'trn~ fnr
~nve:ltigaHon_ .
Penmall observed that alllhc
uUlllr City Cll~c:lJ ~mlH'N are
"tther ruMlalf for election
tbel1lsalm or !lave mdllrud 3
candil1lte in NoVillnber'S t:i~.
uw, If \!ley back JohllSOC1. they
,wId ft.nd themKM5 boefore
the Publ~ lnteKrity Unit ~~ w!:'11 ,
8M 1lIQUES.1l5
-
r n.~ :~u,
.
; INQUIRIES
IIUl.'.Il t(W .1
; tb' city uttorney sa1d.
t::\cn Councilwoman Susan
Li0n L-ongvlJle, who i~ nt\l~eek
\I'g ""I!Il:!(;ljon. may not ~ !Saf(1
Moms officiated at her w~d.
dil1~. :lnd ~e has /!l1dor~ed him
(l'f muyur.
Sl,... laughed wtlen rol<t of tbe
. pIJnn~'d requr$l.S (or govern-
mem propes
'Ob. v/!~, ~aJ1 ~rnuilin\) I~ ~
! ~(..:tl Ill""!\, ".;he saId. "San
Ikrnard1no and ~ OK Corm!."
She ol'dtnl'd to say hQW she
w,n "lL,' <10 .JohllN'ln'~ re~olu-
nan.
1.1IStr\('t attorney's ~p<lk~
r, uo/:,,;o
! FRIDAY, 8~!'1~ 1612005.:_B~
woman SUIM M1C.K'" iuili th~
l"ubhc Inlt!grity L'nit \~Il rl:V1t!W
any complalDts it g~ts.
But SlIc strcs5Cd that tnere
can be a bu~ ll~l:ronCl: ~.
tween considering the lIlerits of
111\ ~Ceu~utjlln :Im) purouing 1111
Investigation,
She said t!le task fOrM won't
hH ltAelf be u:led :u a poUli~31
weapon.
"That was one of our con.
cern.~ when we first e.itsblishcd
thi$ PT1$UJ'll,' ehtl uld.
"W.., were leil'lll or expect-
ing thwlts to get imf!r~.~~intl
dur1ng thi~ polltlctJ SC360n.
itnd thi~ (,;n't "'~i1rtlv ,1 ~ur'
prisc," .
ReaC/\ CI'In~ R,c~lrd.1 :2t)e, 1lI16.~:R
or Cl"IC!lar~COf'\
. .APR-l1-06 II :38
~7fi/2005 10:2g
2138954644
2138%4544
P 02
ETABACHNICK
R-311
Job-202
PAGE 02/02
EXHIBIT B
THE STATE BAR
OF CALIFORNIA
1149 SOlITH HILL STREET. LOS ANGELES. CAUFORNIA 90015-2299
OFFICE OF THE CHIEF TRJAL COlJNSEL
INTAKE
TBWPHONE: (213) 765-1000
TDD: (213) 765-1566
FAX. (213)765-1168
Ilttp:llwww.calbltr.ca. gOY
DIRECT DIAL: (213) 765-1293
April 7, 2006
PERSONAL AND CONFIDENTIAL
RE: Inquiry Number:
Respondent:
Complainant:
05-17429
James F. Penman
Judith Valles
. _._'....,.-~- . -...
-, .
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~. A:R.I02:J
'\ ""'''..',''ICI<
A L"". . ITuRAJlON
Erica Tabachnick
900 Wilshire Blvd, #1000
Los Angeles, CA 9001 7
Dear Ms. Tabachnick:
This letter is sent to you based upon infonnation that you currently represent the Respondent in this
matter. Iftrus is incorrect, please advise me within five days so that I may redirect this letter to the
Respondent personally.
We have reviewed and evaluated the above referenced matter. The determination has been made that
there are insufficient grounds for disciplinary action. Therefore, we are closing our file at this time,
without prejudice.
Thank you for your courtesy and cooperation.
Very truly yours,
~C
Dane C. Dauphine
Supervising Trial Counsel
DCD/dd