HomeMy WebLinkAbout40-City Attorney
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
On:
JAMES F. PENMAN
CITY ATTORNEY
Subject:
Request for Payment of Legal Fees.
Dept: CITY ATTORNEY
Date: June 12,2008
MIce Meeting Date: June 16, 2008
Synopsis of Previous Council Action:
April 17, 2006 - Council authorized reimbursement of $3,000 to James F. Penman for his paymenHo Attorney
Erica Tabachnick and payment of an amount not to exceed $900 to Attorney Erica Tabachnick for legal fees.
May 15, 2006 - Council authorized the allocation of$4,040.28 from the City Attorney Outside Counsel budget
(Line Item 001-051-5503) for payment to Erica Tabachnick in the amount of $1,040.28, and authorize payment of
additional bills to Erica Tabachnick, not to exceed $3,000, without further approval of the Mayor and Common Council.
Recommended Motion:
That the Mayor and Common Council allocate the sum of$3,154.97 from the City Attorney Outside Counsel
budget (Line Item 001-051-5503) for payment of legal fees to Erica Tabachnick, Esq. not to exceed $5,000 without
Ner approval of the Mayor and Common Council. ($1,845.03 of the $7,940.28 previously allocated remains;
Jlf\'l'viding a total of$5,000 if this motion is adopted.)
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Contact person: James F. Penman Phone:
Supporting data attached: Staff Reoort Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct. No.)
(Acct. Description)
5255
All
Finance:
Council Notes:
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INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
To:
Mayor and Common Council
From:
James F. Penman
City Attorney
Date:
June 12, 2008
Subject:
Request for Payment of Legal Fees, Agenda Item # 40 (6/16/08)
Copies:
City Clerk, City Manager, Director of Finance
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The State Bar of California has requested, through my attorney Erica Tabachnick, that I respond
to one of three allegations made against me in a complaint from Ms. Judith Valles, acting as an
individual and filed in December 2005 (copy attached).
After the Bar closed their file on this complaint, Ms. Valles asked the Bar to "review" their
decision. Such a "review" appears to be analogous to an appeal of the decision to close the file.
The sole allegation that I have been asked to respond to by the State Bar at this time is related to
a meeting of the San Bernardino City Council held on September 19,2005. Allegedly, at that
meeting I declined to declare a conflict, did not recuse myself, and did not properly advise my
client of its right to independent counsel, thereby (apparently) acting in bad faith. By her
complaint, Ms_ Valles argues that I violated the Rules of Professional Conduct by my actions on
that date. I respectfully disagree. The Bar previously investigated this issue and, in a letter dated
April 7, 2006 (copy attached) said that the Bar had determined "that there are insufficient
grounds for disciplinary action. Therefore, we are closing our file at this time, without
prejudice."
Previously, on April 17, 2006 and on May 15, 2006, the Mayor and Common Council allocated a
total sum of $7,940.28 to pay my legal fees to respond to the original complaint and to pay other
bills arising after the Bar closed its file as a result of Ms. Valles request for a "review."
To date, $6,095.25 has been spent for legal fees to defend my actions and my conduct while I
was performing my official duties as legal advisor to the Mayor and Common Council. The
o balance of the $7,940.25 approved by the Mayor and Common Council but not yet paid to my
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Memo to Mayor and Common Council
June 12, 2008
Page two
attorney Erica Tabachnick is $1,845.03.
It is estimated that approximately $5,000 will be billed me for legal services at the end of this
month. Therefore, I respectively request that the Mayor and Common Council allocate an
additional $3,154.97 from the City Attorney Outside Counsel account to cover the cost oflegal
services for the additional legal representation necessary to defend myself during the course of
the State Bar's review.
On Tuesday, June 17,2008 I met with Mayor Patrick J. Morris to discuss this request. Mayor
Morris recalled the April 12, 2006 memorandum (copy attached, with the two exhibits attached
to the original memorandum) I had submitted to the Mayor and Common Council, although he
did not remember the two attached exhibits. In that memo I made my initial request for
reimbursement and payment oflegal fees in connection with this matter.
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The Mayor informed me that he believed my memorandum of April 12, 2006 had explained why
this complaint involves a situation where I was acting within the course and scope of my
employment, explained that the City does not carry malpractice or other insurance for our City
Attorney's should they face complaints similar to the one filed by Ms. Valles, and explained the
City's previous history of paying for legal counsel for the City Attorney and other members of
his office regarding previous complaints to the State Bar.
The Mayor told me he feels the same way he did when I made my original request, that it is an
appropriate action for the Mayor and Common Council to take.
I thanked the Mayor for his consistency.
The Mayor also said that he sees such a request for payment oflegal fees as being a separate and
different matter from the recent resolution passed by the Common Council requesting the State
Bar to dismiss Ms. Valles complaint. The Mayor told me he had declined to sign that resolution
because it is his opinion the subject matter of the resolution was outside the jurisdiction of the
Mayor and Common Council. As you recall, the Mayor detailed his reasons for not signing the
resolution in a memorandum that is attached to the official copy of Council Resolution Number
2008 - 164 (copy attached).
As stated earlier in this memorandum, I have attached a copy of my April 12, 2006 memorandum
to you and I request that you read it again, along with the two exhibits attached to it for a more
detailed explanation of why I am making this request to the Mayor and Common Council and
why it is appropriate for me to do so.
o At the Council meeting on June 16,2008, I will recuse myself from giving legal advice to the
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Memo to Mayor and Common Council
June 12,2008
Page three
Mayor and Common Council on this agenda item. I will leave my usual post in the City
Attomey's chair and speak at the staff podium, where other elected officials, department
heads, or other city employees routinely speak, to provide additional factual information or to
respond to any non-legal questions regarding my request.
ectfully submitted,
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J es F. Penman
ity Attorney
Attachments
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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
Subj eel:
Request for ReimbursementJPayment 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] 9,2005 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,
fo!lowing the submission of further evidence, and argument by my attorney, the State Bar of
Califomia issued a letter confirming 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 Attomey, 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 Attomey 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 oflegal counsel to respond to the
allegations stated in the letter of complaint filed by the law firm of Margolis & Margolis with
The State Bar of California in December of2005.
o Because the City of San Bernardino is self-insured, and because the city does not carry
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Memo to Mayor and Common Council
Request for ReimbursementlPayment 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 firm 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 California 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 attorney Erica Tabachnick, and that any remaining fees due Erica Tabachnick be paid to her
from the same account in an amount not to exceed $900.00, without further approval of the
Mayor and Common Council."
I would point out that I am roughly in the same position as a police officer, who, acting in the
course and scope of his employment, uses force he believes to be reasonable to detain a suspect
and is subsequently accused of excessive force.
I also mention that the city attorney's office, in the recent past, and for many years in the more
distant past, has assisted several elected officials during investigations of their conduct by the
Fair Political Practices Commission (FPPC,) andlor has sought legally binding opinions from the
FPPC on behalf of elected official(s) whose performance of their official duties, i.e. casting a
votelintending to do so, on an agenda item, resulted in the need to obtain such an FPPC opinion.
I thank the Mayor and Council for their consideration of this request.
spectfully Submitted,
7 feu--.-a,
J es F. Penman
ity Attorney
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EXHIBIT A
Margolis 8r Margolis LLP
"TTORHIVS "T L"W
AATI1UIl L, AMlGOl.IS
SUSAN L. ~us
2000 MIS/De DIM
LOS ANGEl.E$, CAUFOIN4 fOO39.3758
TEW'HONi 13231 953-1996
Fol.X (323) 953-4740
November a, 2005
Office of rhe Chief Trial Counsel
Complaint Intake
Tbe Slale liar of California
1149 Soum Hill Streel
Loll An~eles. CA 90015:,2299
RF.: Complaint allainst Attorney Jamp.!,! F. Penman
Complaint lmake:
'l"hl8 firm represents Judith Val1cs in her complaint against
Jamel> F. f'ennliUl. Ms. Valles is the Mayor of the City of San
Bernardino: Penman is lhe City Attorney of San Bernardino. and he is
prflllflntly a cincllClate for the Oml't' of Mayor. Ms. Valles 18 not running
for nN!lflCtlOn, and f:he III brtngtng lhls l'Cmpla1nt as an Individual. nol
M a publiC officiill,
San I3cmardlno City CouncllperSOIl Rikke Van Johnson on or
about September 15. 2005, recommended that the San Bemardino
City Council approve the (onowinl( MollclI\:
'That In order to assurp. the taxpayers that. City
resources and funds are not being used Cor political
purposes. the City Council shall file il. formal complaint
wllh th~ Public Integrity Unil Il/" lhe Ult>tncl Attorney's
o{f1ce requesting an Investigation of Mr. James Penman's
use 01' City resources for pOlttkal Jlurposes In vtolatlon or
. Penal Code. Section 424 and Government Code Section
8314, and: furthennore. thllt the Distriet.Attomey's office
prosecute to the fullest extent of the law any violation."
That proposal was based upon a Staff Report which stales, In
part" as follows:
"It ili clear. that bo.sed on Mr. Penman's conduct over
the past several weeks. Mr. Pemman is using the CIty'S
rC(f(lUfCea. compensated slaff time and City cqulpment.
includIng computers. telephones. and faxclI. for his own
polltical purposes as he campaigns Cor the office of Mayor,
Mr. Penman's unauthori1.ed and illegal use of city reMurce!\
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Complaint Intake
Sta~e Bar of California
November 3. 2005
PO:lge 2
f(jr his pulitlcal needs is a grCl~S violation of t.he public trusl
and in direct. Vlolatlon of the law. A.~ lhc elect~ city
o!f1clall'l resp<'\nslble lor thP. l'lty'~ budget. We have a duty to
safe~uard the taxpayer'!! doll~rs and to ensure any lIIegaJ
\ISC of publJc resourc,es III not alluwC!d to continue."
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A h~lU'ing, Including public comment. WIlS held on thaI MOUon
on Sf:ptemb/!r 19, 2005. Ourtn~ that public: proreeding, the City
Attorney. James Penman, Ilerved os legal adVisor to the Clly Council,
l\1.'.ated near thf! Council. with his own mIcrophone, Thill is. for a
proceed1Jl~ In Which It was being derided whether to requcst the
Distrld Attorney's office t.o condul,t a crimtnallnvesl1gaUun of
Penman. he served as legal advisor 10 the Council.
During the meeting, he intertwined his legal advice with
advocacy In hill own favor. Includlll/! usln/! the freedom of his position
and phYt>ll.lLI Jor-alion to his advantagl" by Immediately ar~ing agaJnllt
comment" made by members of the public. 11 procedure which would
have been out of order for anyone t'hse who happened to be the subject
of (he dl!'cmssloll. That. Ill. he l,omblned his role as attomr:y for the
C;oundl wlt}l his role of representing himself.
When. during the pro<:eedlng. CounC'Uperson Esther Estrada
raj~ed thl': obvious question of wheth~r Penman had a conllict and
whet.her tht' Counctl was enUtled to Independr:nl legal lIdVlre. Penman
advised his clll':rll. the Council. that hr was not clilllTltng that he did
not have il. conflict. but that. n('\/erthel/,~t;. the Council was nol entilled
to anothrr aLlorney. He perlllstl'!d In his role as legal advisor on the
matter about. which he was the lSubject. and he persisted In comb1n1ng
lhat role wtth lhat of representing himself and advocatln~ on his O'lVll
behalf.
II appears that In providing hi!> legal Opinion that the Council
was nol'entitled to the IIdvice of lUlothl!r attorney, Penman wa.~ relytng
upon Section 241 of the Charter of Ihl! City of San Bemardtno. That
Section pl'OVlde5:
"Upon lhe recommcndallon, and with the wrttten
consent. of the City Attorney. t.he Mayor 14nd Common
Council $balJ have power and authority to employ and
engage such legal counsel and SltMcea and other
assistants. as may be neee!\tlary and proper for the Inter!'>;!
and b~nefit of the City and the: inhabitants thereof."
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ComplaInt 1Z"lI.uce
Slate Au of Callfonua
Nov<'mber 3. 2005
Pa~e 3
P(mmal\, it seems. is inl.~rpr~lIng Section 241 liS ~uperscdlng
his "thlca] obligations. That Is. because that Section reqUires hill
consent as a condition for the Council to obtain other legal advice. he
apparently believes he IS free 10 withhold his ennsent even if he haa It
disqualifying connlet. Yet, it is well-established that a lawyer in the
publIc seet()r 1$ not exempted from the conflict or interellt rules
applicable to other attorneys, Oeukml'!ltan v. 8rl1Wr1 (1981) 29 Cal.3d
150. 157.
A videotape of the proceedtn~ hrld on September 19. 2005 t8
included here.
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It II requuted that the State Bar of CaW"arnla e,......iD~ the Iu1IlII
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(1) Whetbllf James Penman violated ethical req'ldrttmelWi
RgII'CIiq confJlcta;
(2) WhetJaer b1a Jepl advice to the CotQICJl that It ... DOt
entitled to iadependeat lefall4rieo was t*lf. nolatlOll ot CODIJIct
law: aDd
(3) Whether be lave that advice to Ilia al1eat lzI bad tasth.
bow!D4 it ... UIlU-.
As shown on the encloscd vid"olape l)f the pl"O(~eedlrtAs of
September 19. 2005. certain allcgaUonll were made about him
regardinl( sexual harassment. Penman re8ponded by llJUlouncln~ thaI
!.he Slide Aar of California had fUlly tnvestteated those allegatlonll and
fl)und lhem to be Without merit. We requelt tbat the Bar daterm.lDe
whether p--." wulJiul to Ida cUeut lUId the pubUc ....bq he made
that 8DDOH.~.,..tllt.
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Further. 'in The Press-Enlerprh.e newpaper. on Sept!"mber 16.
2005. it was reported that Counetiperson Rikke Van JohnJlon
Intended to ask the CouneU to request a C'rtmtnal Invesllgatlon of
Penman based upon the matters rencc~ In The Col.lncifperson'!l
above-quoted Motion as well as In the Staff Report.
The article stated. in part:
"'The city attorney ('ailed Johnson's step stlly.
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Complaint Intake
St:J.te Bar of CalIfornia
November 3. 2006
Page 4
"Penman also said he plans t.o draft. a l'Csolutlon Ulat
calls Cor the dllitr1ct at~orney's PubliC' Intellrtty Unit to
Inve!'lligatc n.unOI'$ about somp officials ulinF( city phones
and equipment 10 :Sl~pport other mayoral candidates.
"'Ptlople who live in glu!,l hOllses shouldn'l throw
stones,' he r;ajd.
"If IJohnson) puts something on the coundl
agenda. , , t.hlll's aimed at promoting Judec Morris' campaign by
atlack1n/i( another candida~ !penman), that would be a mlsUlle of
hill official position 10 campaign.' Penmm said. 'I'll have no
recourse! but to refer that to the .Qllil.r1l't altornl;y for
invp.!dJptiou.1
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"Penman observed that all the other City Council
membel'8 are either running for election themselves or
have endorlled a candidate in November's election. If th~
ba('k Johnson. th@v coulrl find 1 }1f~m~t'I\I~S before the
Publii' Intciritv IJDit as well" .he city attomc:y said."
(Bracketed material and emphaflllJ added.)
f\ copy of th~ arlicle i!$ tnclueled here,
(On the mOrninA of September 19, 2005, Penman telephoned
Mayor Valles prtor to the hearinJ( regarding his own conduct. He
stated to her thllt unless the matter WllS Withdrawn Crom the agenda.
hI:! would pill"SUe hill own agenda Item r.all1ng for II Councll request that
me .District. ^ttomc:y's omce lnvcstlJ(ate pOfllllble criminal vi()latioll.'l by
any elected Ctty official's use of public resources lOr campaJgrUnA
activities. [Copy enclosed.! He said that he wuuld Withdraw lUs own
item If Ihe Motion regarding himself was dropped.)
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(Ms, Valles did not join With Penman In that effort, and both
Item5 remained on the aaenda. At on~ point, aner at leasl II portion of
lhe hcarln,lt was hl!ld regarding Penman. Councilman Rikke Van
Johnllon withdrew his MoUon, and, tn response. Penman WIthdrew hill
own proposa!.l
This matter Ja bJoUCh' 10 yo1ll' atteDtloll for determinatiou of
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Complaint Intake
Slate !:Jar of Call1omill.
Novl'mber 3. 2005
Page 5
wbethR l'e1mWl violated Rule 5-100 of the llul.. of rrofeuloual
Couduet. wb1ch Rule ltates.lD part:
"A m-'-" .baD DOt tb1eatea to ~J"8Dt Cl'hlll".'.
~c. or "I....'u..'..,. cIauIeI to obt.~ ..
adnAble III a cM1 dIIpute."
It illl1lo preeeateCI foI' )'OUI' c""..-denUaa of whether ~"_Aft'.
ccnul1lCt IUIIOQDte4 CO. 01' ... .. Uut aatwe of, atortlon .. deftllled ~
Pellal Code Iectioa 1f18. TJaU BectIoII ltateI:
'"Eztortkm .. the ob,.I,.,... 01 prOpel'tf from mother.
with blI eOlLlellt. or tIw ....;..1... of fA otIIli'lJ act of .
public ofJ1cfl. laduced. b1 wroaCful UIe afforce or few. or
uader color of oteMA'lf&1lt."
We rcnlflln available to provide furtht:r information and matclials
Vl:.ry truly yours.
6ft!t J )1~~1'~
Arthur L. Margolis'
1\LM:jd
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C.ll.l.OF SA~ 8ER~ARDl~O .
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RECJl:EST FON. COU~CIL AC+IO~
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On!: J..\\IES F, 1'~:-;\1.-\;-J
eil; .""!loru~y
Subje~I.:
C'se orCi~ R~sourccs 8:: Elected Official. for
POlilicall'l.:ltloses
Dcpt: CITY....TTORSF.Y
<;lal~: Septer:: bl'( 15, ~OO 5
Mce Date: September 19,2005
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Synopsis Jf Prc,ious Council action:
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Recornm~nded mo~ioll:
That in ardelle ~$S\lrc the taxpayers that C:y rC:;l'urccs and funds are nOI being \I5ed foreampa1lnaCliviL)i,
the CitY Coundl shall fill: J rorr::al reque51,.ilh the !lut-li, inlegrity t;llit o{lbe District,~aomey'som\:etcqllesting
an ::'Ilicsligll.lIon ot'possibie violations by illlY elecled City oftidals' use of public resources for campal&rllctivilles
in ',iolll.lion of I'rnui CmJc Scctlon 4~4 and Ciavrrnmtlll ('ode Section 831.1, and; funllcnnoIC. thut tile Dismc:
Am'mC:~'5 ofiic~ prosecute:o the 1'..llle51 extent of the I~w an; lIiol:ltior..
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CO~tlcl person:..J.g,n1!S F, PCllman
Phone:
5255
Supponir.g data ~tl3chcd: Stllff Rcoort
Ward
FL~"Dr,.;G R.i:Ql.'lR.EME~T:i:
Amount:
Source:
Finanee: _....
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Councilman,
i city attorney
i seek inquiries
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! SAN IERNAIDINO: Rikkc
i VanJohoson pojnL~ III
I \\urds at a meeting. Jim
: PewnlU1 reports rumors,
ar _1ICIIUll
H IllS 1A_
0\ San Bernardlno COWlCU.
th;u, h,,~ called ror a criminal
in,"UsI&llOIl or lI\e dl~ ~I'
, wne,', wtla vowed to lMItIlI hlH
: '>WI! probe If bl\lutiI4Wf1 aot
! orders to litart invetHl!lItml
6' 'l'helat.n~uabbllnclnadty
'here relations lIlIlOlllI elel.'ted
l'ft~i"ls are 1101 al..'ll)'ft cordial
: Is "'''teet lIu 8<<pl. 1 eommllUlt!
lnc~tjn" it which City Atwnu:y
jim l'el\llllll1 act1lMd MllIor
. Jurtltl1 VaDes of \llldenninillll
: ~ttempts to eontrol the DUIIlbcr
I III parnlee~ lMnginSan Hemar.
. din!;.
'rhrou<<b A _pokollW')mul\,
V~lIos l'1!.1"'!\l!d the lIIlelllllon.
I ()lI,ncRlni\D lllna van JOlIn.
, ,;,;n bole U I1Iwa ooll!creoof
! Thul'illa)' UlIlllllOWlCO PelUlWl,
i """0 Is Nllllillgfnr mayor. Jobn.
I son "'allts t\1e Sun BamanIIIul
i r. C\lJlty dlslrlct attun>8Y'a amc.
.j I(II~ePClllll8ll...Mbe
i l1llc~cd mJsu8t!d :mdIlilDe and
i :'It, reso~rct'$ by lObbing actu-
: .,.1;0 M at VlIIea rallldr tIWl
I Nopo,lng 1~1ll$loti4t\, wtIioh is
l.h.l...gs.sIath'l! IIelllew Coll1llllt.
. I""' purpose,
! -.
"
f[O-Uc:. -c..IJLJU IfU :J:.J'l.fU rii
o
~
-~
Jabn"',n. who sUPlIOrts Su}.'t1,
I'iur COIll'! Judge Pat lolnrri,'
m~'Oral mndillan', suid .1lch
Illl'..", V1olar.ea tIt.11I! 1Jl\'. He
..in Wlk lIle COUIll:U Moaday In
rcquest an illveaUrltlon, h.
said,
The oiLy i1ltvrn.y culled Juhn-
"')0" Slep silly.
p~ also SlIid be :Ji:I11.I1lI
llrUt a 1'tSCl11llloll1l\at callll ~1I'
tile llImtCt altomey'$ Public
IIltecn1y tiJit to llMllllCato
rumun abolll some olllcLah;
usin. city phones and equip-
meut to iIl{lport other 1nOy<lrnl
caadl4ates,
'POOple 1I'1lo 1I11t III ,Ill..
bollHS sboulllu't tlII'OW SIOM..."
be said.
"It (Johnson) puts Somelhin~
on the COUDclllleDda ... thal'>
aimed at PI'llIllOl1ng J'~lvr'
ri~' t'.JIllIpulsa by attae an-
olller ClIDdId.u, tbat would be 3
mlsuse or IUs otl1I!lal posltlon 1lI
camplll&'!\.. ""_ old- "111
ha,. no nlCU...... but to rerer
that to Uk! district atl<lrn"Y hlf
!l1I1f!SUgallon"
Pillman obeerved that tlIl1le
Ulllllf City COlU\cll_bm are
eUber I'UIlIllDll for eJeCl100
tllIlDselm or llIve lDaonld a
clUldillate in No_ber's t:I~,
Uuo. ff lIIey 11,,* JohlllOC\, tI\c:I
~'OII!d IIDd themIcIves before
tba Publk! Inlel1'ill' Unit llJ! wen,
8111"""'1l5
IL
r M^ nu,
.J
f. UQ/UO
I FRIDAY, S~~ 16. 2006 .:.. 8~
i INQUIRIES
a:~;'l.".lI_ll
; 1 h., city ultllmey said,
I l:\cn Coune1lwoman SuSall
Li~n l.onsvtDe. ",'ho i. nnt.~eek
log r...I"djon.Il1/IY aot ~ !lllfe.
I Morr1J otlldatad at ber wed,
I dinl!, and !he h3I endDrsed lIlm
I rll' mo'''r,
ISh" i.ughe4 WIlen told of tbe
. plaMc-G requ.,sts Illr govern.
ment proDu
. .Oll. ~.., San ~ru~u l~ .
! ~...lIl ltlwn: ,;he .laId. "San
. ik'rnardlM IIld thl! OK Corral,"
She dt'(..llned 10 say bow sbe
Win \o,)Lt~ un .)l1hn.....on.5 re50tu-
tlun,
I.lIStliet attorney's $l'<Ik""
"'oman SUSlIII M;ck~ ;uid tile
l'IIblie integrity t'nil \ViIll'1:V1el\'
IllY eOlllplalDIa it gets.
Il1It lIIe Sll'OUI!d that tMl'l!
can ba a bUll: dltrcn:nce be,
tween ~onsiderillllllle merits of
IIn .i:eu:tUtill" 'lnd punuing 1If1
IDlICqation.
She said t!la task fOml won 'I
ler ,tAelf bil u:<ed u e poUtie31
wt3p.lI'l,
"That was ooe or our con.
cel'M wben we lint utablisbed
thi. \lI'IlllMIl'Il,' silt .lIlt
"Wit were lelod or .~pect.
Lng tlllO<<S to gO! inlllresLin~
dur1ng tlliS polltlCa.l &C31On,
und thl~ Isn't ''':IN!1I ,1 ~ur'
prisc.,o ..
Reacn Cl'<ot R'c'anl 31 ;,Q!' MILlO,A
...".,..,.rllflpe......
APR-l1-06 11 :38
~1/2006 10:29
2138954644
213S95{ 1
P 02
ETABACHNICK
R-3l1
Job-202
PAGE 02/02
EXHIBIT B
-
.,.'
THE STATE BAR
OF CALIFORNIA
1149 SOUTH HIU. STREET, IDS ANGELES. CALIFORNIA 90015.2299
OFFICE OF 1HE CHIEF TRJAL COUNSEL
INTAKE
TBT..6PHONE: (213) 765-1000
IDD: (213) 765-1566
FAl" (213)765-11(>8
http://www.carbar.ca.gov
DIRECT DIAL: (213) 765-1293
April 7, 2006
PERSONAL AND CONFIDENTIAL
-'-~--"'--'" --
:;-';;.r'..:'--',"._~" "'0
"." .
r .',., ~:~.:.>.,. ':.... :.:
L A~A~ I~_'~ I
.-" "\ -'~.::.:,_,~~tit'-'ICK
A lJ"'" ~:'.:h'FORA110N
Erica Tabachnick
900 Wilshire Blvd, #1000
Los Angeles, CA 90017
RE: Inquiry Number:
Respondent:
Complainant:
05-17429
James F. Penman
Judith Valles
DeaT Ms. Tabachnick:
o This letter is sent to you based upon information that you currently represent the Respondent in this
matter. If this 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 detennination has been made that
there aTe insufficient grounds for disciplinary action. Therefon:, we aTe 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
o
"
o
o
o
RESOLUTION NO. 2008-164
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO RESPECTFULL YREQUESTING THE STATE BAR OF CALIFORNIA TO
DISMISS CASE NUMBER 08-0-10457 AGAINST SAN BERNARDINO CITY ATTORNEY
JAMES F. PENMAN.
WHEREAS, the Mayor and Common Council ("the Council") as an entity is the highest
governing body of the Municipal Corporation known as the City of San Bernardino; and
WHEREAS, San Bernardino City Attorney James F. Penman is the chieflegal officer of the City
of San Bernardino; and,
WHEREAS, a complaint against said City Attorney, James F. Penman was dated November 3,
2005, six days prior to the San Bernardino City Mayoral primary election, and was filed by a
complainant, specifically in the capacity of a private citizen and not as a city official, with THE
STATE BAR OF CALIFORNIA in December 2005, alleging misconduct by the City Attorney
regarding Agenda Item S-l on the Septernber 19, 2005 City Council agenda, and, the City Council
did not give its approval to the filing of the State Bar complaint; and,
WHEREAS, THE STATE BAR OF CALIFORNIA found no grounds for disciplinary action
based on said complaint dated November 3, 2005, and closed said complaint; and,
WHEREAS, the Complainant in said case has requested a review of the closing of said complaint
file, and THE ST ATE BAR OF CALIFORNIA has assigned Case Number: 08-0-10457 to its review
based on Complainant's request, and the City Council did not give its approval to the request by the
Complainant to review the State Bar's closure of the complaint, and the City Council did not join in
the request to reopen the complaint; and,
WHEREAS, the Councilmernber who placed said item number S-l on the September 19, 2005
Council agenda withdrew said item from consideration before a vote was taken, and said
Councilmember is not the Complainant; and,
WHEREAS, the San Bernardino County District Attorney's office concluded that the actual
compiaint subsequently submitted to the District Attorney's office did not accuse the City Attorney
of committing any crime and the complaint was therefore dismissed by the District Attorney; and,
WHEREAS, San Bernardino City Attorney James F. Penman has always been diligent in
declaring any conflicts of interest and in recusing himself in regards to such agenda items; and,
WHEREAS, the Mayoral election of2005-2006 was a very contentious election which divided
elected officials as well as the public; and,
o
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO RESPECTFULLY REQUESTING THE STATE BAR OF CALIFORNIA
TO DISMISS CASE NUMBER 08-0-10457 AGAINST SAN BERNARDINO CITY
ATTORNEY JAMES F. PENMAN.
WHEREAS, said 2005-2006 mayoral election is now over, The Honorable Patrick J. Morris was
elected Mayor by the voters in this City in the Municipal General Election held on February 7, 2006
and was sworn in on March 6, 2006, and serves in that capacity today; and,
WHEREAS, San Bernardino City Attorney James F. Penman was reelected to the Office of City
Attorney by the voters of this City in the Municipal Primary Election held on November 6, 2007, and
was sworn in to begin his sixth term in said office on March 3, 2008, and serves in that capacity
today: and,
WHEREAS, the elected officials of the City of San Bernardino have made good progress in
rebuilding their relationships with one another; and,
WHEREAS, the Council as an entity, speaks for the City of San Bernardino which has been the
only client of City Attorney James F. Penman ("the City Attorney") for more than twenty years, and
since said Council as an entity has never filed a complaint against the City Attorney with TIlE
STATE BAR OF CALIFORNIA, and has not joined in the complaint resulting in State Bar Case
o Number 08-0-10457; and,
WHEREAS, the issue called to the attention of THE ST ATE BAR OF CALIFORNIA in State
Bar Case Number 08-0-10457 has been resolved to the satisfaction of the Council, and because the
City of San Bernardino is currently in the midst of a serious budget crisis which involves many legal
questions, and because the City has numerous legal cases and other legal issues to which the full
attention of the City Attorney and all other City officials is needed, and because continuation of the
case will promulgate further dissension, division, and distraction throughout the City, thus impacting
the daily work and duties of various city officials in addition to the City Attorney,
THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
That the City of San Bernardino hereby respectfully requests that TIlE STATE BAR OF
CALIFORNIA dismiss said State Bar Case Number 08-0-10457 against San Bernardino City
Attorney James F. Penman.
o
"
o
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO RESPECTFULLY REQUESTING THE STATE BAR OF CALIFORNIA
TO DISMISS CASE NUMBER 08-0-10457 AGAINST SAN BERNARDINO CITY
ATTORNEY JAMES F. PENMAN.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
joint
Common Council of the City of San Bernardino at a regular meeting thereof, held on the ..!2..day
of MAY
, 2008, by the following vote, to wit:
The foregoing Resolution is hereby approved this _ day of May , 2008.
Per attached memorandum dated May 23, 2008, from Mayor Patrick J. Morris, the
Mayor declined to sign this resolution. Pursuant to Section 31 of the City
Charter, this resolution is valid since it was passed by a vote of not less
than 5 Council Members and shall take effect as if approved by the Mayor.
PATRICKJ. MORRIS, Mayor
City of San :aernardino
Approved as to form:
o
o
7f;;~r;c~ "I~:;',=:~ v
S/-U/t>8
OFFICE OF THE MAYOR
PATRICKJ. MORRIS
CITY OF SAN BERNARDINO
INTEROFFICE MEMORANDUM
TO:
SUBJECT:
Rachel Clark, City Clerk
Mayoc P...ok J. M~
Resolution 2008-164
FROM:
DATE:
May 23, 2008
CC:
City Council; City Attorney; City Manager
o
I am returning Resolution 2008-164 without my signature because, by requesting that the
State Bar dismiss a complaint filed by a private citizen against an attorney, the resolution would
involve the City of San Bernardino in a private and confidential legal matter under the exclusive
jurisdiction of the State Bar of California. In accordance with Section 40 of the San Bernardino
City Charter ("Powers of Mayor and Conunon Council"), involvement in, or influencing of, the
investigation and prosecution of a private citizen's complaint by the State Bar of California, is
not a matter appropriately within the jurisdiction of the Mayor and the Conunon Council of the
City of San Bernardino.
According to Resolution 2008-164, a private citizen filed State Bar Case 08-0-10457
against attorney James F. Penman in December 2005, and such complaint is currently under
investigation by the State Bar. The City of San Bernardino is not a party to this private citizen
complaint. Because all complaints filed with the State Bar are by required by state statute to be
confidential, neither the Mayor nor members of the Common Council have knowledge of the
facts, allegations, or potential violations arising under this complaint. Nonetheless, Resolution
2008-164 proposes to resolve that "the City of San Bernardino hereby respectfully requests that
THE STATE BAR OF CALIFORNIA dismiss said State Bar Case 08-0-10457" against attorney
James F. Penman.
c
Section 40 of the San Bernardino City Charter defmes the powers of the Mayor and
Common Council. The powers enumerated in Section 40 are powers that are related to functions
necessary and/or proper for protecting and advancing the general welfare of the City and its
inhabitants. Like our federal government, charter cities are a form of limited govenunent and are
only allowed to exercise powers expressly conferred upon them by the citizenry. Therefore,
actions by the City that are not within the scope of powers enumerated in Section 40 of the
Charter are considered "ultra vires" and void.
Pagel
o
o
o
'. .
Clearly, a resolution requesting that State Bar of California dismiss a private citizen's
complaint against an attorney, to which the City is not a party and for which city officials have
no knowledge of the facts, allegations or law, is not a power conferred by the citizens of San
Bernardino on the Mayor and Common Council. Therefore, to avoid an ultra vires action by the
City, and to prevent the City from impermissibly interfering with the exclusive jurisdiction of the
State Bar of California on matters involving complaints by private citizens against an attorney, 1
am returning Resolution 2008-164 without my signature.
Page 2