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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
horn: JAMES F. PENMAN
CITY ATTORNEY
Date: February 8, 2001
Or-'''''''JL
tii\,ll i III r~
Subject: Request for thc City Clerk to be authorized, subject to
the recommendation of the City Attorney, to retain outside
special counsel services for the purpose of obtaining any and all
legal advice concerning questions and issues on the referendum
to overturn Ordinance No. MC-J09l which was adopted by
the Council on January 16,2001; said ordinance repeals
Chapter 2.20 of the San Bernardino Municipal Code
relating to City Attorney approval to retain outside special
counsel services.
Dept: CITY ATTORNEY
Synopsis of Previous Council Action:
None.
Recommended motion:
That the City Clerk be authorized, subject to the recommendation of the City Attorney, to retain outside special counsel
services for the purpose of obtaining any and all legal advice concerning questions and issues on the referendum to
overturn Ordinance No. MC-I 091 which was adopted by the Council on January 16, 2001; said ordinance repeals Chapter
2.20 of the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services.
L~~
C Signature
Contact person: JAMES F. PENMAN. City Attorney
Phone:
5255
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount: Unknown
Source:
Finance:
Council Notes:
Agenda Item No. 3~
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STAFF REPORT
Council Meeting Date: February 20. 2001
TO:
FROM:
DATE:
Mayor and Common Council
City Attorney's Office
February 8, 2001
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On February 7, 2001, the Committee For Integrity In San Bernardino City Government
("Committee") sent a letter to the Mayor and Common Council (copy of letter is attached). The
letter indicates, among other things, that the Committee has "collected 4,882 signatures on petitions
for a Referendum against your January 16,2001 repeal of Chapter 2.20 of the San Bernardino City
Municipal Code (S.B.C.M.C.)." This figure of 4,882 signatures exceeds by over 700 the minimum
number of valid signatures necessary (4,159) to place the referendum on the baIlot at a special or
general municipal election should the Mayor and Common Council not reconsider and repeal
Ordinance No. MC-I091.
Section 9021 of the California Elections Code states in relevant part as foIlows:
"~9021. Circulation of petition
Any qualified registered voter may circulate an initiative or referendum
petition anywhere with the state. . . ."
Section 9022 ofthe California Elections Code states in relevant part as follows:
"~9022. Declaration and certification of circulator
(a) Each section shaIl have attached thereto the declaration of the person
soliciting the signatures setting forth the information required by Section
104 and stating that the circulator is a registered voter of the state.
No other declaration thereto shall be required.
Petitions so verified shall be prima facie evidence that the signatures thereon
are genuine and that the persons signing are qualified voters.
Unless and until otherwise proven upon official investigation, it shall be pre-
sumed that the petition presented contains the signatures of the requisite number
of qualified voters." (emphasis added)
Section 9239 of the California Elections Code states in relevant part as foIlows:
"~9239. Acceptance of petitions for filing; Determination of number of signatures
Petitions shall be accepted for filing by the elections official and the determination
of the number of signatures thereon shall be made by the elections official in accord-
ance with Section 9210. . . ."
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Section 9210 of the California Elections Code states in relevant part as follows:
"~921O. Persons who may file petitions; Procedure; Petitions not accepted for filing
The petition shall be filed by the proponents or by any person or persons authorized
in writing by the proponents. All sections of the petition shall be filed at one time. . . .
When the petition is presented for filing, the elections official shall do all of the following:
(a) Ascertain the number of registered voters of the city last reported by the county
elections official to the Secretary of State pursuant to Section 2187 effective at the
time the notice specified in Section 9202 was published.
(b) Determine the total number of signatures affixed to the petition. If, from this
examination, the elections official determines that the number of signatures, prima
facie, equals or is in excess of the minimum number of signatures required, he or
she shall accept the petition for filing. The petition shall be deemed as filed on that
date."
Section 9237 of the California Elections Code states in relevant part as follows:
"~9237. Suspension of effective date of ordinance
If a petition protesting the adoption of an ordinance and circulated by any
qualified registered voter of the city, is submitted to the elections official
of the legislative body of the city in his or her office during normal office
hours, as posted, within 30 days of the adoption of the ordinance [and contains
at least the minimum requisite number of signatures so required], the effective
date of the ordinance shall be suspended, and the legislative body shall
reconsider the ordinance."
Through January, 2001 (there have been no referendum inquiries since) the City Attorney's
office has responded to questions posed by the City Clerk's office on the referendum process, as well
as other petition requirements. A conference call between members of the City Attorney's office
and the City Clerk's office occurred with Mr. Oliver Cox, Chief Legal Counsel to the California
Secretary of State, to further resolve outstanding questions concerning the referendum process and
the form ofthe petition. The questions posed to both the City Attorney's office and the Secretary
of State's office would apply to any referendum effort; all of which occurred on or before January
31, 200 I, two weeks before the deadline to turn in any referendum petitions so that nothing had yet
qualified or appeared as yet to qualify for the ballot.
However, as a result of the Committee's letter of February 7, 2001, it now appears clear for
the first time that upon the filing of the referendum petition the effective date of Ordinance No. MC-
1091 will be suspended, and since Ordinance No. MC-I091 repeals Chapter 2.20 of the San
Bernardino Municipal Code and Chapter 2.20 deals solely with a subject matter that would affect
the operations of the City Attorney's office, a conflict now arises for the City Attorney's office
should the City Clerk need legal advice concerning questions and issues on this referendum petition
including, but not limited to, certification, placement before the Mayor and Common Council for
reconsideration and repeal of Ordinance No. MC-I 091, the calling of an election on the referendum
and the wording of the ballot language.
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Accordingly, it is recommended that the Mayor and Common Council adopt the proposed
floor motion as set forth under this agenda item so that the City Clerk may retain outside special
counsel services on this subject matter.
attachment
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COMMrn'EE FOR INTEGRITY IN
SAN BERNARDINO CITY GOVERNMENT
330 N. D. ST., SUITE 330
SAN BERNARDINO, CA 9240 1
10#97-1747
February 7, 200 I
Mayor Judith Valles and
Members of the Common Council
City of San Bernardino
300 North "0" Street
San Bernardino, California 92418
Dear Mayor Valles and Council Members:
The Committee for Integrity in San Bernardino City Government has, as of this morning,
:ollected 4,882 signatures on petitions for a Referendum against your January 16,200 I repeal of
Chapter 2.20 of the San Bernardino City Municipal Code (S.B.C.M.C).
Although it becomes more difficult to gather signatures each day, because so many voters have
3lready signed the petitions, we believe we will reach our goal of 5600 signatures by Valentine's
Day, February 14,200 I.
We have prepared an initiative petition we had planned to file today with the City Clerk's
Office. However, because of our progress on the Referendum, and the increasingly obvious need
to heal our community, we want to give you the opportunity to respond to this most recent
reaffirmation of the will of the voters as previously expressed by their resounding defeat of
Measure "M".
We call upon you to halt the divisiveness that began with Measure "M", increased with your
repeal of Chapter 2.20 of the S.B.C.M.C. and exploded with your transparent "censure" of our
elected City Attorney.
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Mayor Valles and Common Council
Page two (2)
February 7, JOO I
The voters of this Oty do not want you to hire any outside legal counsel without the consent of
their Oty Attorney. That message was sent by their "no" vote on Measure "M". The voters are
clarifying and sending that message again by their signatures on this Referendum petition.
We will postpone the filing of our initiative petition until you have had the opportunity to
reconsider your repeal of Section J .JO of the San Bernardino Municipal Code and your action of
"censure" against our Oty Attorney.
Our petitions for the Referendum Against an Ordinance Passed by the Mayor and Common
Council. will be filed by February 15. JOO I per the advice of the City Oerk. RachelOark.
Sincerely.
~Wox.#~
Committee for Integrity in San Bernardino City Government
cc: City Attorney
City Clerk