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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
Subject: Proposed Charter Amendment __
Prosecution of State law violation~
(misdemeanors and infractions)
Dept: City Attorney
Date: July 21, 1988
Synopsis of Previous Council action:
None.
Recommended motion:
Adopt Items 1, 2, 3 and 4 as indicated on the attached Staff Report.
-/L
Signature
James F. Penman, City Attorney
Contact person:
James F. Penman
Phone:
5255
Supporting datI attached:
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Notes:
?
elTY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
In 1971, Section 55(d) of the Charter of the City of San
Bernardino was amended to delete the requirement that the City
Attorney prosecute state misdemeanor violations. This was
apparently done as a cost saving measure since the District
Attorney was already set up to handle these types of
prosecutions. In recent years, the question has been raised
whether, by this action, the people intended to prohibit only the
general misdemeanor prosecutions, or to also prohibit the
prosecutions of such actions as are specifically granted by law
to the City Attorney. The power of the City Attorney to proceed
in these areas is further called into question by a recent
Attorney General Opinion (No. 87-302).
Attached is a proposed Charter amendment which would give the
City Attorney the power, but not necessarily the responsibility,
to prosecute certain state misdemeanors and infractions. This
would include violations relating to dance studio contracts
(CiVil Code Section 1812.63), violations relating to human whole
blood, human whole blood derivatives and other biologics (Health
& Safety Code Section 1618), failure of service stations to have
adequate water and air facilities available for use by the public
(infraction - Business and Professions Code Sections 13652 and
13653), maintenance of a public nuisance (Penal Code Section
373a), as well as violations of the Political Reform Act
(Government Code Section 91001.5). lThis amendment would also
grant the enforcement power for drug and vice prosecutions which
require the approval of the District Attorney (see Government
Code Section 41803.5).
It is recommended that the Mayor and Common Council:
1. Approve the Resolution of the City of San Bernardino
proposing an amendment of the Charter of said City
allowing the prosecution of certain state misdemeanor
and infraction violations by the City Attorney.
2. Approve the Resolution of the City of San Bernardino
submitting to the electors a proposed Charter Amendment
which would grant the City Attorney the authority to
prosecute certain violations of state law which are
misdemeanors or infractions and requesting that
such special municipal election be consolidated with
the general election conducted by the County of
San Bernardino.
3. Direct the Acting City Administrator and the Acting
Finance Director pursuant to San Bernardino Municipal
Code Section 2.56.190, to prepare an impartial fiscal
analysis of the measure showing the amount of any
increase or decrease in revenue or cost to the City.
75-0264
4. Direct the City Attorney, pursuant to Elections Code
Section 5011, to prepare an impartial analysis of
the measure showing the effect of the measure on
existing law and the operation of the measure.
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO PROPOSING AN
AMENDMENT OF THE CHARTER OF SAID CITY ALLOWING THE PROSECUTION OF
CERTAIN STATE MISDEMEANOR AND INFRACTION VIOLATIONS BY THE CITY
ATTORNEY.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:'
SECTION 1. Recitals.
( a )
In accordance with the Constitution of the State of
California, the City of San Bernardino, a municipal corporation,
has adopted a Charter.
(b)
The Mayor and Common Council of the City of San
Bernardino desire to submit to the electors the Charter Amendment
set forth in this resolution.
SECTION 2.
Submittal to Electors. The following proposed
amendment to the Charter of the City of San Bernardino is
submitted to the qualified electors of the City of San Bernardino
for their approval or rejection at the consolidated municipal
election to be held on November 8, 1988.
PROPOSED CHARTER AMENDMENT NO.
It is proposed that Article IV, Section 55(d) of the
Charter of the City of San Bernardino be amended to read as
followS:
n(d) The City Attorney shall be the chief legal officer of
the City; he or she shall represent and advise the Mayor and
Common Council and all City officers in all matters of law
pertaining to their offices; he or she shall represent and appear
for the City in all legal actions brought by or against the city,
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and prosecute violations of City ordinances, and may prosecute
violations of state law which are misdemeanors or infractions and
for which the City Attorney is specifically granted the power of
enforcement by state law without approval of the District
Attorney, or those violations which are drug or vice related; he
or she shall also act and appear as attorney for any City officer
or employee who is a party to any legal action in his or her
official capacity; he or she shall attend meetings of the City
Council, draft or approve as to form and legal content all
proposed ordinances and resolutions, give his or her advice or
opinion in writing when requested to do so in writing by the
Mayor or Common Councilor other City official upon any matter
pertaining to municipal affairs; and otherwise to do and perform
all services incident to his or her position and required by
statute, this Charter or general law."
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held on
the
day of
, 1988, by the fOllowing
vote, to wit:
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
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2 The foregoing resolution is hereby approved this day
3 of , 1988.
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5 Evlyn Wilcox, Mayor
City of San Bernardino
6 Approved as to form
7 and legal content:
8 11 L
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9 .C:iLty Attorney
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